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7-2200-14439-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE POLLUTION CONTROL AGENCY
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In
the Matter of the Wastewater Treatment Plant NPDES Permit. |
RECOMMENDED ORDER GRANTING SUMMARY
DISPOSITION |
The above-entitled matter
is before Administrative Law Judge Richard C. Luis on the City of
Robert B. Roche, Assistant Attorney General,
Notice is hereby given
that, pursuant to Minn. Stat. § 14.61, the final decision of the Minnesota
Pollution Control Agency shall not be made until this Recommended Order has
been made available to the parties to the proceeding for at least ten days, and
an opportunity has been afforded to each party adversely affected to file
exceptions and present argument to the Agency.
Parties should contact Commissioner Karen A. Studders, Minnesota
Pollution Control Agency,
Based upon all the files, records, and proceedings herein, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS HEREBY RECOMMENDED:
1. That the City’s Motion for Summary Disposition be GRANTED.
2. That this matter be referred back to the Minnesota Pollution Control Agency for issuance of a NPDES permit to the City for operation of its wastewater treatment facility.
Dated: October 31, 2002.
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/s/ Richard C. Luis |
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RICHARD C. LUIS |
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Administrative Law Judge |
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The City of
After receiving comments, the MPCA
Board considered a request from the MCEA that a contested case proceeding be
held to develop a record to resolve disputed issues of fact relating to three
issues. The three issues identified by
the MCEA are: 1) whether the proposed discharge of phosphorus from the City’s
WWTP is in amounts that will affect a lake or reservoir; 2) does the proposed
permit require the City to remove phosphorus to the fullest extent practicable;
and 3) does the proposed permit allow the City to discharge phosphorus in
amounts that are likely to cause pollution, impairment of water quality, or
harm aquatic habitat resources. MPCA
staff opposed the request, maintaining that the MCEA had not shown that issues
of fact exist that must be resolved through the contested case process.
The MPCA Board considered the request
for a contested case hearing from the MCEA.
The MPCA Board concluded that no factual issues were presented by the
second and third issues identified in the MCEA’s request. Those two requests were denied. The MPCA concluded that a sufficient showing
had been made to refer the first issue for contested case hearing. As stated in the Notice and Order for
Hearing, the issue to be decided in this matter is “whether the discharge of
phosphorus from the
After the contested case was
initiated, the City, the MCEA and the MPCA staff engaged in discovery. Upon the conclusion of discovery, the City
moved for summary disposition. The MPCA
staff responded to the motion, agreeing that there are no genuine issues of
material fact to be decided in a hearing.
The MCEA opposed the motion, asserting that summary disposition is
inappropriate in this matter.
Summary
disposition is the administrative equivalent of summary judgment. Summary disposition is appropriate where there
is no genuine issue as to any material fact and one party is entitled to
judgment as a matter of law.[3] The Office of Administrative Hearings has
generally followed the summary judgment standards developed in judicial courts
in considering motions for summary disposition regarding contested case
matters.[4]
The
moving party has the initial burden of showing the absence of a genuine issue
concerning any material fact. A genuine
issue is one that is not sham or frivolous.
A material fact is a fact whose resolution will affect the result or
outcome of the case.[5] To successfully resist a motion for summary
judgment, the nonmoving party must show that there are specific facts in
dispute that have a bearing on the outcome of the case.[6] A nonmoving party cannot rely on pleadings
alone to defeat a summary judgment motion.[7] The nonmoving party must establish the
existence of a genuine issue of material fact by substantial evidence; general
averments are not enough to meet the nonmoving party’s burden under Minn. R.
Civ. P. 56.05.[8] The evidence presented to defeat a summary
judgment motion, however, need not be in a form that would be admissible at
trial.[9]
When
considering a motion for summary judgment, the facts must be viewed in the
light most favorable to the non-moving party,[10] and all
doubts and factual inferences must be resolved against the moving party.[11] If reasonable minds could differ as to the
import of the evidence, judgment as a matter of law should not be granted.[12]
General Statement of the Issue
Presented
Propriety of Summary Disposition
The MCEA asserts that the discharge from the City’s WWTP affects the Coon Rapids Pool, thereby triggering the application of Minn. Rule 7050.0211, subp. 1a. The MPCA staff and the City assert that the Coon Rapids Pool is not a “lake or reservoir” within the meaning of the applicable rule and that the City’s discharge of phosphorus does not affect that water body.
In support of its
assertion that the Coon Rapids Pool is a reservoir, the MCEA cites the DNR’s
Bulletin 25, that lists the Coon Rapids Pool among the reservoirs in
The City vigorously disputes categorizing the Coon Rapids Pool as a reservoir. The residence time of water in the Coon Rapids Pool is 1.9 days or less under low-flow conditions.[16] The residence time is often significantly less, approaching 0.5 days during the summer.[17]
Taking the facts in the light most favorable to the nonmoving party, the MCEA, the Coon Rapids Pool is a reservoir within the meaning of Minn. Rule 7050.0211, subp. 1a.[18] As the MCEA recognizes, the ultimate issue in this matter is whether the discharge of phosphorus from the City’s WWTP “affects” water bodies, such as the Coon Rapids Pool. The City asserts that summary disposition is appropriate regarding the Coon Rapids Pool since the MCEA has not shown that the water body has been affected by the City’s phosphorus discharge.
The MCEA asserts that the DNR supports the conclusion that a 1 mg/L limit should be applied to the City’s phosphorus discharge. The DNR participated in the NPDES permit process and supported the MPCA staff’s recommendation that a phosphorus management plan (PMP) be required, rather than the 1 mg/L limit.[19] In arriving at that conclusion, the DNR analyzed the relationship between phosphorus loading and the concentrations of chlorophyll a present in the Coon Rapids Pool.[20] The summer and annual averages for total chlorophyll a were attached to the DNR’s written conclusion.[21] The DNR’s conclusion was that a PMP was the appropriate condition to place on the City’s NPDES permit. Regarding the impact of phosphorus discharged by the City, the DNR stated:
In offering our comments on this permit, DNR continues to
recognize the reservoir status of the
The analysis by the DNR indicates that there is no current measurable effect from the City’s phosphorus discharge on any downstream lake or reservoir. This conclusion is consistent with the assessment of the MPCA staff. The MPCA staff and the City assert that the MPCA’s longstanding interpretation of the applicable rule is that a discharge must have a measurable effect on an affected lake or reservoir before the 1.0 mg/L phosphorus limit is imposed through a discharge permit.[23] The MCEA asserts that cumulative impacts are sufficient to demonstrate a genuine issue of material fact for whether the limitation must be imposed.
The manner in which agency interpretations are assessed was set out in a recent contested case proceeding.[24] In that matter, the ALJ set out the analysis as follows:
The only issue presented in this proceeding is the proper interpretation [of] Minnesota Rule 7020.0400, subpart 5, and the application of the rule to the stipulated facts. Deference is given to an agency’s interpretation of its own regulation, especially when the relevant language is unclear or susceptible to different interpretations. If the regulation is ambiguous, the agency’s interpretation will generally be upheld if it is reasonable. No deference is given to an agency’s interpretation, however, where the language of the regulation is clear and capable of being understood. Moreover, if an interpretation has not been consistently applied in the past, a court may cite this as an important factor in finding the interpretation to be an invalid (unpromulgated) interpretive rule. Interpretations by agencies that attempt to clarify the law they administer and are not within the plain meaning of an existing rule are deemed to be interpretive rules. Interpretive rules must be adopted pursuant to the rulemaking requirements of the Minnesota Administrative Procedure Act in order to be valid.[25]
The relevant language for interpretation is the meaning of the word “affects” in Minn. Rule 7050.0211, subp. 1a. The word is not further defined in the rule. The term “affects” is open to interpretation, on its face. The MPCA has consistently interpreted the word to require there be some measurable impact attributable to the discharge. The existing NPDES permit was issued to the City using that interpretation. The DNR recognized the MPCA’s interpretation while participating in the City’s permit application process. The MPCA’s interpretation of Minn. Rule 7050.0211, subp. 1a, is entitled to deference in this matter.
To
defeat the City’s Motion, the MCEA must show that there is a genuine issue of
material fact regarding measurable impact arising from the discharge of
phosphorus from the City’s WWTP. MCEA
has consistently relied upon the cumulative phosphorus load in the
Vadnais Chain of Lakes
To
meet its water needs, the City of
The City asserts that, as a matter of law, it does not discharge into the Vadnais Chain of Lakes and therefore Minn. Rule 7050.0211, subp. 1a, does not apply. Additionally, the City relies upon MPCA studies (known as the BATHTUB analysis) to show that there is no correlation between the phosphorus discharged by the City and any measurable impact in the Vadnais Chain of Lakes.[31] The MCEA has introduced evidence to dispute the conclusions derived from the MPCA analysis. Resolution of the testing issue would require a hearing as genuine issues of fact are presented regarding the existence of a correlation between phosphorus discharged by the City and the measurable impacts experienced by the Vadnais Chain of Lakes. The City can only prevail on summary disposition regarding the Vadnais Chain of Lakes issue if the City is not legally responsible for the discharge to those waters.
The
MCEA recognizes that
The City has cited a number of federal cases on the issue of responsibility for discharges from point sources where water is transferred from one water body and no additional pollutants added. As the issue was presented in one such case:
The Clean Water Act prohibits the discharge of pollutants from a point source into navigable waters without an NPDES permit. See 33 U.S.C. §§ 1311, 1342. The "discharge of a pollutant" is defined as "any addition of any pollutant to navigable waters from any point source." See 33 U.S.C. § 1362(12). No party disputes that the S-9 pump station and, in particular, the pipes from which water is released constitute a point source or that the water released by the station contains pollutants. Also, both parties agree that the C-11 Canal and the WCA-3A constitute navigable waters. The parties mainly dispute one legal issue: whether the pumping of the already polluted water constitutes an addition of pollutants to navigable waters from a point source.[33]
The issue in Miccosukee is identical to the issue presented here. The 11th Circuit concluded that the relevant inquiry is from the point of view of the receiving waters. The Court of Appeals concluded where the polluted water is coming from a point source that is the “cause-in-fact” of the pollution entering the receiving waters, the operator of that point source is the discharger who must obtain an NPDES permit.[34] This holding is consistent with a number of earlier cases from other circuits, all applying the standards of the Clean Water Act in assessing the need for an NPDES permit.[35]
The MCEA does not cite any case law holding that the NPDES permit requires analysis of waters not naturally receiving the discharge. Rather, MCEA argues that:
There is absolutely nothing in any of the cases cited that discusses or even alludes to excusing upstream dischargers of pollutants (especially large ones like St. Cloud) from water quality standards and rules simply because there are also downstream dischargers (or “transferors”) of the same pollutant. Clearly, the P rule does not say that the last discharger of phosphorus is the one that must be held responsible for all discharges of phosphorus upstream of that point.[36]
The
analysis offered by the MCEA is misplaced.
Every discharger is responsible for the pollutants put into the
receiving water and that responsibility continues downstream into any other
water that is part of the natural flow.
The impact of phosphorus on downstream resources is the reason that a
PMP is included in the NPDES permit that the MPCA staff has proposed for the
City. For the 1 mg/L standard to apply,
a measurable effect from the City’s discharge must be demonstrated in waters
receiving that discharge. When
One key factor that separates lakes and reservoirs from rivers is residence time. Natural lakes generally have very long residence times, typically measured in terms of months to decades, and hence residence time is more than adequate to allow for growth of algae. Reservoirs, on the other hand, may vary substantially with residence times measured in terms of weeks, months, or years. Lake Pepin (a run-of-the-river reservoir), for example, exhibits residence times of about 19 days on average but may range from a low of 5 - 6 days at high flow to over 60 days at very low flows.[37]
The
MPCA Phosphorus Strategy explicitly addressed the situation presented by flow
conditions in
Thus wastewater
treatment facility (WWTF) discharges directly to these pools, with the
exception of
The
description of the analysis for application of the phosphorus rule to
The showing that the MCEA expects to make is one of cumulative impacts. As the MCEA argues:
As stated above,
phosphorus introduced into the water body will grow algae in
As discussed above, the standard for imposition of the 1 mg/L limit on phosphorus discharges is whether a measurable impact of the particular discharge is observed in a lake or reservoir affected by that discharge. The requirement for a measurable impact of the particular discharge is a matter of MPCA policy. There is nothing preventing the MPCA from changing that policy, as an exercise of its authority. That authority does not extend to ALJs in contested case proceedings. Absent the MPCA’s stating expressly that its application of the rule has changed, or engaging in rulemaking to effectuate such a change, the longstanding interpretation of the MPCA must be given deference in this proceeding.
The MCEA offers only evidence of impacts caused by cumulative discharges to support its position. In the deposition of a MPCA staff member, MCEA inquired into the discussions held on applying the 1 mg/L phosphorus limitation to dischargers based on cumulative discharges.[40] Those discussions did not result in a change in the MPCA’s policy, which is to impose the 1 mg/L discharge limit on a point source (such as the St. Cloud WWTF) only if its discharge is found to have a measurable, specific impact on the receiving water. The specific figures discussed for all of the phosphorus impacts are all cumulative numbers.[41] In this instance, cumulative numbers fall short of the factual threshold needed to defeat a motion for summary disposition.
The
MCEA has had the opportunity to produce such evidence showing a measurable
impact from the discharge of phosphorus from the City’s WWTF, or obtain such
evidence through discovery from any other source. Presenting facts showing an individually
measurable impact from the
R.C.L.
[1]
The discharge occurs at mile 930 of the
[2] See City Exhibit D.
[3]
Sauter v. Sauter, 70 N.W.2d 351, 353 (
[4] See
[5]
Illinois Farmers Insurance Co. v. Tapemark Co., 273 N.W.2d 630, 634 (
[6]
Thiele v. Stitch, 425 N.W.2d 580, 583 (
[7]
White v.
[8]
[9] Carlisle, 437 N.W.2d at 715, quoting Celotex Corp. v. Catrett, 477
[10]
Ostendorf v. Kenyon, 347 N.W.2d 834 (
[11] See, e.g., Celotex, 477
[12]
[13] Minn. Rule 7050.0211, subp. 1a. The full language of the rule reads:
Subp.
1a. Total phosphorus effluent limits. Where the discharge of effluent is
directly to or affects a lake or reservoir, phosphorus removal to one milligram
per liter shall be required. The limit must be a calendar month arithmetic mean
unless the commissioner finds, after considering the criteria listed in items A
and B, that a different averaging period is acceptable. In no case shall the
one milligram per liter limit exceed a moving mean of 12 monthly values
reported on a monthly basis, or a simple mean for a specified period, not to
exceed 12 months. Calendar month effluent limits in effect on February 7, 2000,
must remain in effect unless an assessment of the criteria listed in items A
and B indicate a different averaging period is acceptable. A different
averaging period is acceptable when:
A.
the effects of the phosphorus loading from the facility on the receiving water
or downstream water resources is generally not measurable; and
B.
the treatment technologies being considered offer environmental, financial, or
other benefits.
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. Dischargers required to control nutrients by this subpart are subject to the variance provisions of part 7050.0190.
[14] MPCA Reply, at 1.
[15] City Exhibit N, Admission 24. “Residence time” is the length of time water spends within the boundaries of the water body. The longer the residence time, the more amenable the water body is to undesirable impacts caused by pollutants.
[16] City Exhibit Q.
[17]
[18] The finding that the Coon Rapids Pool is a reservoir is only for the purposes of the City’s motion for summary disposition. If this matter were to go to hearing, evidence would be considered regarding the characteristics of the Coon Rapids Pool for determining the issue as a matter of fact. The existence of this issue does not preclude a grant of summary disposition, since the status of the Coon Rapids Pool is not the ultimate issue in this matter.
[19] Mark Ten Eyck Affidavit, Exhibit D, at 1.
[20]
Mark Ten Eyck Affidavit, Exhibit D, at 2-3.
The measurements are taken at UM 871.6, located in
[21] Mark Ten Eyck Affidavit, Exhibit D, Attachment.
[22] Mark Ten Eyck Affidavit, Exhibit D, at 3 (emphasis added).
[23] The MPCA points out that limits may be imposed through other means, such as the total mean daily load (TDML) process used where waters are determined to be impaired. MPCA Reply, at 10.
[24] ITMO Jennie-O Foods Administrative Penalty Order, OAH Docket No. 11-2200-12862-2 (ALJ Recommended Order issued June 21, 1999).
[25] ITMO Jennie-O Foods Administrative Penalty Order, supra, at 5.
[26] City Exhibits H (Answers 1 and 11-15).
[27] City Exhibits I (Response 8) and Exhibit J (Response 2).
[28] See, e.g. Brimmer Affidavit, Exhibit C.
[29] MPCA Exhibit B, at 2.
[30] MPCA Exhibit B, at 2.
[31] City Memorandum, at 10-11.
[32] City Exhibit A, at 3.
[33] Miccosukee Tribe v. South Florida Water Management District, 280 F.3d 1364 (11th Cir. 2002).
[34]
[35]
[36] MCEA Memorandum, at 13. It is noted that holding the City responsible for the cumulative impact of all phosphorus dischargers upstream of the first affected lake or reservoir seems to be what the MCEA seeks in this proceeding.
[37] City Exhibit B, at 11 (emphasis in original).
[38] City Exhibit B, at 13 (emphasis in original).
[39] MCEA Memorandum, at 14.
[40] Brimmer Affidavit, Exhibit C, at 47-48.
[41] See e.g., Brimmer Affidavit, Exhibit C, Heiskary Exhibit 9, at 43; Osgood Affidavit, Exhibit B, at 5-6.