Motion to Authorize Participation in a Voluntary Assessment for the Coalition of Greater Minnesota Cities ( CGMC) 2016 Wastewater Legal and Regulatory Fund

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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


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


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





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

e-mail

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.



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



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

[email protected].

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



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



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.

Documents

Motion to Authorize Participation in a Voluntary Assessment for the Coalition of Greater Minnesota Cities ( CGMC) 2016 Wastewater Legal and Regulatory Fund