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8/20/2019 Motion to Authorize Participation in a Voluntary Assessment for the Coalition of Greater Minnesota Cities ( CGMC) …
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City o r
RE
NG
CITY COUNCIL AGENDA REPORT
TO:
Honorable Mayor and City
Council
Members
FROM:
Bob Stark —
Deputy Director Public Works -
Utilities
Marshall Hallock —Finance Director
Agenda
Item No.:
9-
1 3
Meeting
Date:
December
14,
2015
ACTION REQUESTED:
Motion to Authorize Participation
in a
Voluntary Assessment
for the Coalition of Greater Minnesota Cities (CGMC) 2016 Wastewater Legal and
Regulatory Program.
ATTACHMENTS:
The
following documents are attached:
1 )
Letter
from
CGMC to Mayor Bender dated November
24,
2015 describing the
Voluntary Assessment
Program;
2)
Voluntary Assessment Pledge
Form/
Invoice; and
3)
Memorandum from CGMC
explaining
th e
rational for the CGMC/MESERB
challenge to MPCA's water quality standards for rivers and
streams.
DISCUSSION:
The Minnesota P o llu tio n C o n tr o l Agency ha s adopted standards that in
the
opinion
of the GCMC,
the Minnesota
Environmental
Science
and
Economic Review
Board ( MESERB),
and
the City
staff that participate
in these
groups
o n
behalf of
the
City, were no t adopted in
a manner consistent
with the requirements of the Clean Water
Act.
These standards have
the potential to
have
a
very major effect
o n the
City's
wastewater treatment plant, and could
result
in
a
substantial increase
in the cost of the
wastewater treatment infrastructure and
operational requirements. At the same
time,
there would be very little, if any improvement to the Mississippi River.
The
GCMC members
voted
to
approve
a
Voluntary Assessment
plan to fund
a
new
GCMC 2016
Wastewater
Legal
and Regulatory Program at the November
13h
meeting.
The init ial
g o a l
for this Voluntary Assessment
is
to allow CGMC to continue to pursue
this legal challenge while allowing the current environmental budget to
be
used for
legislative activity.
The
suggested amount of
the Voluntary Assessment is $
1 . 00
per
wastewaterconnecton
This
corresponds to approximately $
6,000.
Staff is seeking
direction o n whether or not
to
participate
in
the
Voluntary Assessment.
Page 1
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Oaf G R E A T E R
S
9
Tuesday, November
24, 2015
Mayor Dan
Bender
315 W. 4thStreet
R ed Wing, M N
55066-
2504
Dear
Mayor
Bender,
Dedicated to a Strong
Greater
Minnesota
Via
U. S . mail
and
Coal i t ion
of
Greater
Minnesota Cities (
CGMC)
m e m b er s t ak e their ro le as stewards of
Minnesota
s
waters
seriously, but without
regulatory
and legislative re lief our cities could face escalating wastewater and storm
water costs that will generate
few environmental
benefits. To address
this challenge,
at the
C G M C
membership meeting in Alexandria o n November 13, the C G M C
board
recommended
an d
the members
approved a voluntary
assessment
to
pay
fo r a new CGMC
Wastewater Legal and
Regulatory
Program.
The
program
and rat ionale
ar e described
below. W e ho pe
that
R ed
Wing
will join with others an d contribute to
this
program
through a voluntary assessment in
th e amount of $1
per wastewater hookup.
The Problem
and Needed
Action
The pace of regulatory activ i ty by the
Minnesota Pol lution Contro l Agency (
MPCA) and the
Environmental
Protection
Agency (
E P A ) h a s been
increasing. Expensive
and generally
unfunded
mandates are
being
enforced through
permits issued
to
city wastewater facilities.
S o m e of these standards
ar e based o n
outdated science, contradict national
standards
and/ o r
include
requirements
imposed
by no other states.
Equipment upgrades ar e being required that
will
result in
little
o r
no
benefit
to water
quality and th e
increased c o s t s
to city
households
could
b e
substantial.
And,
environmental groups
h a v e
lawyered
u p a n d
ar e challenging these
problematic
MPCA standards
in
court as not going far enough.
O ur
challenge
is
that the CG MC has a l imited budget fo r environmental
advocacy
at the
legislature
and
no
budget
for legal
o r regulatory
advocacy.
I t a ls o lacks the budget for a media plan to win public support
or
respond to negative an d
erroneous media created by
environmental
groups
an d
the
MPCA.
In September,
the
CGM C b o a r d reallocated a
portion of
th e C GMC ' s environmental budget to a state
rulemaking petition
that
will seek
to amend
or repeal the
state'
s
new
riverine
standards
and
a federal
lawsuit
challenging
the
E P A
approval
o f
those
standards.
The
federal
suit
arises
f rom
statements
by
the
E P A
that
it
h a d no documents
o r records
in
its
possession demonstrating the scientific validi ty of
several
criteria in the
new standards,
even
though it approved those standards
four
months later.
The
request fo r
new
rulemaking
arises out of new
evidence
relating to
the reasonableness
of
the
MPCA'
s standards:
a
memo
from the main
national
standards
board
stating that a
key test used in th e MPCA
standards
is no t an appropriate measure
of
impairment. Th e attached memo
explains
the rationale
for these
suits
in
more
detail.
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PAGE 2
S c o p e
of
Activity
Initially, the Wastewater
L e g a l a n d Regulatory P r o g r a m
funds will
b e u s e d to pursue the two
lawsuits
described above, including appeals and to p ro v ide
media support
a s needed related
to
the C G M C s
environmental program. This w o uld a llo w th e
existing
CGMC environmental budget to b e used
fo r legislative
activity. If sufficient
f u n d s a re r a is e d
through t h i s
a s s e s s m e n t ,
additional
l e g a l
efforts to
a d d r e s s other a r e a s
ofconcern, such as the enforcement or development of
chloride,
sulfate,
mercury
or nitrate standards, may
be undertaken. These funds
will
not be used for an y purpose other than
this
type of environmental activity.
Creating
this Wastewater L e g a l and Regulatory Program
fo r
the C G M C will also allow the Minnesota
Environmental Science
an d
E c o n o m i c
R e v ie w B o a rd (
MESERB)
to return to its original focus of
providing
technical expertise on regulatory matters affecting
wastewater
facilities.
The
C G M C is much better
positioned to engage in legislative
an d
legal advocacy than
M E S E RB .
This Wastewater L e g a l and Regulatory
Program
will not.address individual city permits. Many.
citles.do
no t
realize that if
the MPCA
seeks
to
change
your N P D E S
permit, you
can
negotiate
the
terms
and/
or challenge
the permit in
a
contested case: If your permit Is expir ing or the MPCA has c o n ta ct ed y o u about changing
your permit, yo u may want to
contact
o ne of Flaherty &
H o o d , P .
A .'
s regulatory attorneys, Chr is topher H o o d
or
Daniel
Marx, to
discuss
your options at
651-
225-
8840.
The Request toCities
The CGMC
me mbe r sh ip v o te d
to
pa y
fo r this Legal and Regulatory
Program through
a
voluntary
assessment
I n th e
am o u nt of $1 .
00
fo r
each wastewater hookup. Fo r example, a city
that
has 1200 commercial and
residential
wastewater
hookups in its town would
contribute $
1200. Because this Is a voluntary assessment,
a city could chose t o co nt r ibu te more,
o r
less, than that amount.
This
assessment
is
for
2016.
At
our
2016
annual
meeting
in
Austin,
Minnesota, we
will
evaluate
the
progress
of this new fund
an d decide
how
to
proceed in future years. Attached to this
letter,
yo u will
find
an
invoice/
pledge form.
If
yo ur c ity
is
willing to contribute
to
the
C G M C
Legal and Regulatory Program, please
return this fo rm.
Y o u
can pay
no w
by check, o r pledge to pay in 201 6 by lune 1 .
The CGMC Board strongly urges
yo u
to participate in this effor t t o
bring
sound science and reasonable
requirements
to wastewater regulation.
Thank you for
your assistance
on this
important
matter.
Best
regards,
Bob Broeder
President,
Coalition
of Greater Minnesota Cities
Cc:
K ay Kuhlmann
cc by
Email only
Rick
Moskwa
8/20/2019 Motion to Authorize Participation in a Voluntary Assessment for the Coalition of Greater Minnesota Cities ( CGMC) …
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Pledge Form/
Invoice
CGMC 2016 Wastewater Legal and
Regulatory
Program
Voluntary
Assessm en t
The Coalition of
Greater Minnesota
Cities (CGMC)
ha s
established a Wastewater Legal and
Regulatory
Program
that will be funded by its
members through a
voluntary assessment.
Th e
suggested
assessment
is $
00 per
wastewater billing account.
To calcula te the suggested assessment
fo r your
city, multiply the number of wastewater billing
accounts by $1 .
00: $
Please participate
in
the Wastewater
Legal
and Regulatory Program.
Y o u
may
send a check no w
o r
pledge
an a moun t
an d
remit
payment
by June 1 ,
2016.
W e will
send
a reminder invoice to
those
choosing
to
pledge.
Y o u
m ay choose to
contr ibute
m o r e ( o r
less)
than the
suggested
amount.
Thank
yo u
fo r
your support of the C G M C Wastewater Legal and Regulatory Program.
If
yo u
have
any quest ions on
the
program o r the voluntary
assessment, please
contact
Tim
Flaherty of
Flaherty &
H o o d , P.A.
at (
651) 225- 8840
o r
by e - mail
at
Please
return this portion
to
th e CGMC
by
February 1 , 2016.
The
City
of {
city
name} will
participate
in
the
Voluntary
Assessment
fo r
the
C G M C
Wastewater
Legal
and
Regul ato ry
P ro g ra m b y ( select one)
Submit t ing
payment
of the voluntary assessment n o w ( enclose check p ay ab le to th e
CGMC)
Pledging
to pay the voluntary
assessment
by June 1 , 2016.
City} will pledge
o r
pay
the
following assessment ($
1
per wastewater account suggested)
Coalition
of Greater Minnesota
Cities
c/ o Dana Hogan
Flaherty &
Hood,
P.
A.
525 Park Street Suite 470
Saint
Paul,
MN
55103
DCHogan@flaherty-
h o o d .
co m
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of G R E A T E R
M I N N z
OQ
J.
Dedicated
to a Strong
Greater
Minnesota
Rationale fo r C G M C / M E S E R B challenge
to
M P C A' s water quality
standards
for rivers and streams
The C G M C B o ar d v o ted
Oct.
23, 2015
to
authorize Flaherty
and
H o o d
and
Hall
and Associates
to
initiate and
prosecute
the
fol lowing
tw o legal
actions:
1 .
A s t a t e rulemaking
petition to a m e n d or repeal the
s t a t e s
new
water
quality rules
related to rivers and streams,
and
2.
A
f e d e r a l
lawsuit
a g a i n s t
t h e U . S . Environmental Protection Agency challenging
i t s
approval
of
the
MPCA'
s
riverine
standards
The Board
t o o k this act ion
because parts of the
ne w
M P C A
riverine standards are no t based o n
sound science and evidence
of
this was no t considered in the
state'
s
original rulemaking.
Below
is
the rationale fo r
the action
taken
by the C G M C and
the Minnesota
Environmental
Science
and Review
Board (
MESERB):
1 .
Federal
lawsuit against the EPA cha lleng in g
its
approv al of the MPCA'
s
r iverine
standards
T h i s l e g a l a c t i o n involves a
lawsuit a g a i n s t
t h e United S t a t e s Environmental P r o te c t i o n A g e n c y
E P A )
for
acting
contrary
to the requirements
of
section
303(
c)
of the federal Clean
Water
Act
an d regulations promulgated thereunder when it approved MPCA' s riverine standards. Under
the
section
303( c) of the
Clean
Water Act, the EPA is required
to review
a nd to
a pp ro v e o r
disapprove state -
adopted
water
quality
standards, such
a s
M P C A ' s
r iverine
standards. State
standards ar e required to b e b as ed o n a
s o u n d
scientific rationale and sound scientific
information (
40
C.F.R.
1 3 1 .
11 (
a) and (b)),
and appropriate technical and scientific data and
analyses (
40
C.
F.
R.
1 3 1 . 5( a )(
4)).
The E PA approved
Minnesota'
s
riverine standards on January 23, 2015. However,
just four
months earlier,
th e
EPA
responded to Freed om of Information
Act
requests ( EPA FOIA
r e s p o n s e s ) indicating
that
it
h a d
n o
d o c u m e n t s o r r e c o r d s in
its p o s s e s s i o n
demonstrating either
that
d isso lv ed ox ygen (
D O )
flux, per
s e , should be
considered
indicative
of
use
impaiiunent
in
a
river
o r
stream,
o r t ha t u sin g t he
five-
da y
biochemical oxygen
demand (
BOD S) test
as
a
nutrient
response
criterion wa s scientifically defensible,
b oth
of
which ar e features of th e MPCA' s
riverine standards
that
were
challenged
by M E S E R B throughout the
M PCA'
s
rulemaking a n d
then in
the
declaratory
judgment
action
in
the C o ur t of Appeals.
A f e d e r a l
lawsuit
a g a in s t th e
EPA would
b e p r e m i s e d o n th e fact that t h e
EPA
a c t e d
arbitrarily
and unreasonably in approv ing Minnesota'
s
riverine standards
after
admitting that it d id n o t
8/20/2019 Motion to Authorize Participation in a Voluntary Assessment for the Coalition of Greater Minnesota Cities ( CGMC) …
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p o s s e s s any
information
showing ( 1 the BODS test is a valid
nutrient impairment
indicator, o r
2) that DO flux
causes aquatic
life
impairments
just four
months
earlier. This
argument
is
bolstered
by the publication
of a memorandum from
Andrew Eaton,
of
th e J o i n t Editorial B o a r d
of the Standard
Methods,
for the Examinat ion of
Water
an d
Wastewater,
the creato r of the B O D S
test, datedNovember 19, 2014 (the Standard Methods memorandum),
which
confirmed that the
BODS test, relied
upon by
the
MPCA
a s a response criterion fo r
its new
riverine standards,
is no t
an
appropriate
measure ofnutrient pollution
nor
is it a validpredictor ofnutrient impacts.
The existence
of
the
EPA'
s FOIA responses and the Standard
Methods
memorandum make a
federal case
against
the
E PA strong and easy
for a federal
judge to
understand.
In
short,
ho w
could
the
EPA
have
approvedMinnesota' s riverine standards when
it
admittedthat
ithad
no
information demonstrating that
ke y aspects
of
these
standards were scientifically defensible, and
when the creator of o ne of the
tests
utilized
by MPCA to
detect nutrient impairments had
indicated
that
it
should
not be used
in
such a
manner?
2. State
administrative petition
to
amend or repeal MPCA' s riverine standards
This
legal action
involves
fling a petit ion the
M P C A to
amend o r repeal
its
r iverine standards o n
the basis of
ne w evidence,
w hic h w o uld likely
allow for
an appeal of
a
denial
of
such petition
to
proceed
to the Minnesota
Court of
Appeals
as
a
matter ofright
under a
writ of
certiorari. S ee
Minn.
Stat. § 606.06 ( (
a) writ ofcertiorari for review ofan administrative decision pursuant to
chapter
14 is
a matter
of
right. )
Minn.
Stat. §
14.
09 1 authorizes
a city
o r
sanitary district
to
petit ion for
the amendment o r repeal
ofa rule or specific portion ofa rule (
such
as
MPCA' s riverine standards)
if
it
can demonstrate
that
o ne of
the
fol lowing
has
become available since
the adoption
of
the rule
in question:
1 significant new evidence
relating
to the
need
for
o r reasonableness of
the rule;
o r
2) less
costly
o r
intrusive
methods of
achieving
the purpose
of
the
rule.
In
this case,
significant
ne w
evidence
exists relating
to the reasonableness of the MPCA' s
riverine standards inthe form
of
both the
EPA
FOIA responses and the Standard
Methods
memorandum referenced
above.
Th e fact that the Minnesota C o u r t
of
Appeals previously
refused to allow
either
of these documents into the appellate reco rd in the prior declaratory
judgment
action
would also help
a
filing
city o r
sanitary distr ict
to
demonstrate that these
documents constitute new evidence and
present a
distinct
legal
issue separate from the previous
declaratory
judgment
action.
A s would be the case in a federal
lawsuit
against the E P A ,
a
petition
to amend or
repeal the
MPCA' s
riverine
standards under Minn.
Stat. §
14.091
would
present
a
clean,
easy
to
understand
case
that would be focused
o n
the compell ing
post -
rulemaking evidence
that the
BODS
test
is no t a valid nutrient impairment indicator
and that D O
flux
does
not
cause
aquatic
life
impairments.