Minnesota Pollution Control Agency
Considered and decided by Kalitowski, Presiding Judge; Halbrooks, Judge;
and Stoneburner, Judge.
Relator Minnesota Center for Environmental Advocacy (MCEA) has raised disputed material issues of fact concerning application of Minn. R. 7050.0211, subp. 1a (2001) (the phosphorus rule) to the National Pollutant Discharge Elimination System permits for the cities of Faribault and Owatonna, such that contested case hearings would aid the Minnesota Pollution Control Agency (MPCA) in making a final decision on these permits. And because we are unable to determine whether (1) the MPCA has genuinely engaged in reasoned decision-making; or (2) the MPCA's decision not to apply the phosphorus rule is supported by substantial evidence, MCEA is entitled to contested case hearings.
The opinion of the court was delivered by: Kalitowski, Judge
Relator Minnesota Center for Environmental Advocacy (MCEA) challenges the decision of respondent Minnesota Pollution Control Agency (MPCA) to reissue National Pollutant Discharge Elimination System (NPDES) permits to wastewater treatment facilities in respondents Faribault and Owatonna without requiring removal of phosphorus from the facilities' discharge to a limit of 1 mg/L.
This consolidated appeal arises out of the MPCA's issuance of NPDES permits for the Faribault and Owatonna wastewater treatment facilities without phosphorus effluent limits. Relator contends that because (1) phosphorus discharges from the two facilities affects Lake Byllesby; and (2) the facilities are not removing phosphorus "to the fullest practicable extent," the MPCA was required to impose a phosphorus limit pursuant to Minn. R. 7050.0211, subp. 1a (2001) (the phosphorus rule). In the alternative, relator contends that the evidence demonstrates a dispute of material fact such that contested case hearings on issuance of the facilities' permits are warranted.
The phosphorus rule states in relevant part: "Where the discharge of effluent is directly to or affects a lake or reservoir, phosphorus removal to one milligram per liter shall be required.... " Minn. R. 7050.0211, subp. 1a. The rule goes on to state: "In addition, removal of nutrients from all wastes shall be provided to the fullest practicable extent wherever sources of nutrients are considered to be actually or potentially detrimental to preservation or enhancement of the designated water uses." Id.
In March 2000 the MPCA developed a phosphorus guidance document entitled the Phosphorus Strategy. The Phosphorus Strategy states that "affects" in the phosphorus rule is "measured in terms of actual or predicted increases in chlorophyll-a concentration, increased frequency of nuisance algae blooms, reduced transparency, reduced dissolved oxygen concentrations (attributable to decaying algae), or related adverse responses to phosphorus." The Phosphorus Strategy further defines "measurable impact" as "the individual contribution of the discharge in causing any of the adverse changes [discussed in the definition of 'affects']."
Phosphorus is an important measure of water quality of a lake or reservoir because excessive phosphorus results in adverse changes in water quality. These changes have a negative impact on fish, vegetation, and oxygen levels. Responses to phosphorus in the system can be determined by measuring chlorophyll-a and water transparency. In 1996, the MPCA reported that Lake Byllesby's phosphorus levels far exceeded the natural levels for its applicable ecoregions. At that time, Lake Byllesby's average summer in-lake phosphorus levels were 258 micrograms per liter (mðg/L). According to the MPCA, the target phosphorus levels for Lake Byllesby's ecoregions are 40-90 mðg/L. The MPCA also noted that Lake Byllesby is suffering a variety of adverse effects from the high phosphorus levels. And Lake Byllesby has recently been included on the state's Impaired Waters List as being impaired by excess nutrients.
Both Faribault and Owatonna operate wastewater treatment facilities that discharge to the Straight River, which flows into the Cannon River, and finally to Lake Byllesby. The Faribault wastewater facility is located approximately 26-27 miles upstream from Lake Byllesby; the Owatonna facility is located approximately 45-46 miles upstream from Lake Byllesby.
Both cities are required to hold a NPDES permit, which is reviewed and reissued by the MPCA approximately every five years. Currently, Owatonna discharges phosphorus at 2.6 mg/L and Faribault discharges phosphorus at 4.0 mg/L.
In July and September 2002, the MPCA published notice of intent to reissue NPDES permits for the Faribault and Owatonna wastewater treatment facilities, respectively. In response, relator submitted comments and a request for contested case hearings under Minn. Stat. §§ 14.57, 14.58, and Minn. R. 1400.5010 et seq., on the need for a phosphorus effluent limit of 1 mg/L based upon the MPCA's modeled effects to Lake Byllesby and the application of the phosphorus rule.
The MPCA conducted water quality modeling analyses to determine whether Faribault and Owatonna, separately, have a measurable impact on the adverse conditions present in Lake Byllesby. The MPCA's modeling showed that reducing the Owatonna facility's phosphorus effluent discharge to 1 mg/L would result in reductions of in-lake phosphorus of 9%, and reducing the Faribault facility's ...