sonar exhibits #43 - 46 · crystallizer capex/mgd. this estimate (evap/cryst) this estimate (evap...

Barr Engineering Co. 4300 MarketPointe Drive, Suite 200, Minneapolis, MN 55435 952.832.2600 www.barr.com

Technical Memorandum

To: File From: Bryan Oakley, Alison Ling Subject: Updates and Correction for Appendix C – Membrane Costs Date: April 25, 2017 Project: MMB c: Dale Finnesgaard, Don Richard, Lisa Andrews

This memorandum addresses the April 15, 2017 email request from Scott Kyser, MPCA. Scott requested equations used to calculate membrane and evaporator crystallizer costs in the February 10, 2017 MMB Engineering Cost Analysis report.

Figure C-4 in the report does not represent calculations used for evaporator/crystallizer costs in the final report. Figure C-4 will be replaced with the following figure which is representative of the equations used to calculate the evaporator/crystallizer costs:

$-

$50,000,000

$100,000,000

$150,000,000

$200,000,000

$250,000,000

$300,000,000

$350,000,000

0 0.5 1 1.5 2

MGD to Crystallizer

Crystallizer CapEx/MGD

This Estimate(Evap/Cryst)

This Estimate (EvapOnly)

Mackey Model Evaponly (2014 $)

S-43

wq-rule4-15u

To: File From: Bryan Oakley, Alison Ling Subject: Updates and Correction for Appendix C – Membrane Costs Date: April 25, 2017 Page: 2

P:\Mpls\23 MN\62\23621225 Cost Analysis of Water Quality\WorkFiles\Cost Estimating Team\Treatment Technologies\RO and EvapCryst Costs\RO-NF-EC cost equation.docx

Evaporator/crystallizer and membrane cost estimates presented in the report were calculated with the following equation:

𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸𝐸 𝐶𝐶𝐶𝐶𝐸𝐸𝐸𝐸𝐸𝐸𝐶𝐶𝐶𝐶 𝐶𝐶𝐶𝐶𝐶𝐶𝐸𝐸 (𝐸𝐸𝐸𝐸𝑝𝑝 𝑀𝑀𝑀𝑀𝑀𝑀) = 𝐴𝐴 �𝑄𝑄𝑄𝑄′�0.6

+ 𝐵𝐵 �1 + �𝑄𝑄′

𝑄𝑄�0.4

�

Where,

Q = flow to process (mgd)

Q’ = reference flow

A = scaling cost ($)

B = baseline cost ($)

RO NF E/C

(Q<100 gpm)

E/C

(Q>100 gpm)

Q’ 0.78 0.91 0.094 0.36

A $1,165,700 $1,155,700 $6,000,000 $15,000,000

B $75,700 $65,700 $238,200 $505,500

This equation will not be included in the report.

S-43

Variance Addendum NPDES/SDS Permit Renewal Permit No. MN0042536

Cliffs Erie Hoyt Lakes Mining Area Surface Discharge Stations SD026 and SD033

Prepared for Cliffs Erie LLC

December 10, 2012

S-44

Variance Addendum NPDES/SDS Permit Renewal Permit No. MN0042536

Cliffs Erie Hoyt Lakes Mining Area Surface Discharge Stations SD026 and SD033

Prepared for Cliffs Erie LLC December 10, 2012

332 West Superior Street Duluth, MN 55802 Phone: (218) 529-8200 Fax: (218) 529-8202

S-44

P:\Mpls\23 MN\69\23691072 NPDES Reissuance Area 5-Tailings Basin\WorkFiles\NPDES Permitting and Variance\Variance Applications -

Updated\Overall Variance Addendum (Updated 2012-12-10).docx i

Cliffs Erie Hoyt Lakes Mining Area Variance Addendum

NPDES/SDS Permit Renewal Permit No. MN0042536

December 10, 2012

Table of Contents

1.0 Introduction ............................................................................................................................................ 1

2.0 Financial Information ............................................................................................................................. 2

3.0 Updated SD033 Implementation Schedule............................................................................................. 4

4.0 SD026 Variance Application (Updated)................................................................................................. 6

5.0 SD033 Variance Application (Updated)................................................................................................. 7

S-44


Updated\Overall Variance Addendum (Updated 2012-12-10).docx 1

1.0 Introduction

This document is an addendum to Section “2.0 Request for Variance” of the document titled “Hoyt

Lakes Mine Area NPDES/SDS Permit Supplemental Information and Request for Variance” as

submitted to the Minnesota Pollution Control Agency (MPCA) on April 3, 2012. Based on

subsequent discussions and correspondence with the MPCA, this addendum contains additional

financial information; an implementation schedule for SD033; an updated version of the request for

variance for surface discharge station SD026; and an updated version of the request for variance for

surface discharge station SD033. The original requests for variance and these associated updates are

based upon the guidance document titled “Guidance to MPCA Staff for Assessing Variance Request

from Water Quality Standards and Associated Effluent Limits by Industrial and Municipal NPDES

Permit Applicants”.

S-44



2.0 Financial Information

The following is an explanation of why only the financial information associated with the sole

NPDES permittee of the Hoyt Lakes Mine Area, Cliffs Erie LLC, is relevant related to this request for

variance.

In reviewing a request for a variance, the MPCA is constrained to consider the economic burden on

the responsible person seeking the variance. Here that responsible person is Cliffs Erie L.L.C.

(“CE”), the sole permittee under the NPDES permits.

CE is a limited liability company duly organized under Delaware state law and is registered to do

business in the State of Minnesota with the Minnesota Secretary of State. As such CE is a person

under Minnesota law just as if it were a Minnesota limited liability company, corporation, or natural

person. MINN. STAT. § 322B.90. As a limited liability company it is a person under Minnesota

law. MINN. STAT. § 115.01 subd. 10.

CE became the sole permittee on October 23, 2001, when it received the approval of the United

States Bankruptcy Court of the Northern District of Ohio, Eastern Division and closed on its

agreement with the bankruptcy estate of LTV Steel Mining Company, Inc. (“LTVSMC”) to purchase

most of the assets and assume certain of the liabilities of LTV Steel Mining Company located in

Minnesota. At the time of this acquisition, CE had negotiated with the State of Minnesota and

various of its agencies to approve and support this acquisition in the Bankruptcy Court. These

negotiations led to the execution of an agreement between and among the State Of Minnesota,

Minnesota Iron Range Resources And Rehabilitation, Minnesota Department Of Natural Resources,

Minnesota Pollution Control Agency, Minnesota Department Of Revenue, Cliffs Erie L.L.C.,

Cleveland-Cliffs Inc, Minnesota Power, Rainy River Energy Corporation—Taconite Harbor, LTV

Steel Mining Company and LTV Steel Company, Inc. This Agreement is known as the State Master

Agreement. Under the terms of the State Master Agreement it was agreed that CE would become the

sole permittee under both the NPDES permits and essentially all other permits that had been issued to

LTVSMC. In lieu of posting a bond or a letter of credit or some other form of financial assurance in

order to give comfort to the State that it would perform all of its obligations under the permits, CE

offered, and the State and its agencies accepted, a corporate guaranty from CE's ultimate parent

company Cleveland-Cliffs Inc. (now Cliffs Natural Resources and referred to hereafter as “Cliffs”).

S-44



Although it was proposed by the State during the negotiations leading up to the State Master

Agreement that Cliffs be added as a co-permittee on all of the LTVSMC permits, this step was not

agreed to by CE and only the corporate guaranty by Cliffs was ultimately provided to the State and

its agencies. Moreover, there is no language in the guaranty that states that Cliffs agreed to become a

permittee under any permit. Instead, Cliffs merely agreed to meet the obligations and liabilities of CE

when they become due, if and when CE failed to perform or pay those obligations and liabilities

according to their terms. Thus, this instrument does not make Cliffs a permittee or responsible person

under the statute. It is clearly only a form of financial assurance, akin to a bond or letter of credit,

not an assumption of the permit obligations themselves.

Thus, CE believes that in the context of this variance it is only its own financial condition that is

relevant to the variance request, not that of Cliffs or any other entity. Just as the MPCA would

ignore the assets and income of the bonding company, had a bond been posted as financial assurance,

or the assets and income of a bank, had a letter of credit been posted, CE believes that the financial

condition of the corporate guarantor is irrelevant when evaluating the financial impact of not granting

a variance. CE knows of no case where the financial condition of a corporate guarantor, a bonding

company or a letter of credit issuer has been deemed relevant in this context.

It has also been decided in Minnesota that it is beyond the power of the MPCA to simply add Cliffs

as another permittee so as to be able to base its variance determination on the financial condition of

Cliffs rather than CE. The Minnesota Court of Appeals rejected that approach as beyond the

statutory power of the agency and in violation of the rights to due process of the permittee and its

ultimate owners. In re Hibbing Taconite Co., 431 N.W.2d 885, 890 (Minn. Ct. App. 1988). The

Court of Appeals further ruled in that case that a separate parent corporation does not come under the

definition of the “person” referred to in MINN. STAT. § 115.01 subd. 10.; In re Hibbing Taconite

Co., 431 N.W.2d at 893.

Therefore, this application contains only financial information about the permittee, Cliffs Erie L.L.C.

3007303.1-APM

S-44



3.0 Updated SD033 Implementation Schedule

As included in CE’s November 29, 2012 letter to the MPCA, RE: April 6, 2010, Cliffs Erie, LLC

Consent Decree – Response to October 31, 2012 MPCA Letter (“Review of Response to July 25,

2012 MPCA Letter), the following are milestone schedules for conducting the evaluations of passive

treatment technologies at SD033, including revised schedules for the source isolation and floating

wetlands technologies. The starting date of these schedules will begin in the 4th

quarter of 2012 upon

the MPCA’s approval of the schedules.

S-44

Proposed Schedule for SD033 Passive Treatment Testing NPDES/SDS Permit No. MN 0042536 - Prepared for Cliffs Erie LLC and PolyMet Mining Inc.

November 29, 2012 Revision

Permeable Reactive Barrier (PRB), to begin Q4, 2012Months from milestone: 3 6 3 6 9 12 15 18 21 3 6 3 6 9 12

Pre-Implementation Field Studies1

Pre-Implementation Studies Report & Pilot Testing Plan

Agency review and acceptance

Construct (Demonstration-Scale) Pilot Test1,3

c c

Monitor (Demonstration-Scale) Pilot Test 4

Submit Pilot Test Report and Recommendations


Design/optimize selected system

Agency review of design

Construction/optimization of system1, 3

c c c c

System construction substantially complete2

Source Isolation, to begin Q4, 2012Months from milestone: 3 6 9 3 6 9 12 15 18 21 3 6 3 6 9 12

Field Sampling Plan for Pre-Implementation Studies




Construct Pilot Test1, 3

c c

Monitor Pilot Test 4

Pilot Test Report and Recommendations


Design Cover System


Construction of system1, 3

c c c c

System construction substantially complete2

Sulfate-Reducing Bioreactor; to begin Q4, 2012 (Clearwater Layline)Months from milestone: 3 6 9 12 15 18 21 24 3 6 3 6 9 12

Refine Pilot Testing Plan / Equipment Procurement

Initial 4-bioreactor Test 1, 3

Construct and Monitor Pilot Test 4



Design of selected system



c c c c

System construction substantially complete

Months from milestone: 3 6 9 3 6 9 12 15 18 21 3 6 3 6 9 12

Field Sampling Plan for Pre-Implementation Studies




Construct Pilot Test1, 3

c

Monitor Pilot Test 4

c



Design of selected system



c c c c

System construction substantially complete

Notes:

1. Start date for activity may vary depending on seasonal field restrictions

2. Construction for this mitigation alternative (if selected) may be a multi-year program. This completion milestone applies only to the first construction season.

3. Dependent upon reciept of appropriate permits and agency approvals.

4. Progression and ultimate duration of this activity is dependent on the acquisition of sufficient data derived from pilot testing.

Agency Review and Approval Step

Floating Wetland, to begin Q4, 2012, in the event that the Sulfate-Reducing Bioreactor is not approved as an acceptable

substitute under the Consent Decree.

P:\Mpls\23 MN\69\23691072 NPDES Reissuance Area 5-Tailings Basin\WorkFiles\Long_Term_Mitigation\SD_033\Implementation Schedule SD033.xlsx

S-44



4.0 SD026 Variance Application (Updated)

S-44

Variance Application NPDES/SDS Permit Renewal Permit No. MN0042536

Cliffs Erie Hoyt Lakes Mining Area Surface Discharge Station SD026

Prepared for Cliffs Erie LLC April 2012 Updated: December 10, 2012

S-44





S-44


Updated\4.0 SD026 Variance Application (Updated)\SD026 Variance Application (Updated 2012-12-10).docxP:\Mpls\23 MN\69\23691072

NPDES Reissuance Area 5-Tailings Basin\WorkFiles\NPDES Permitting and Variance\Final Submittal - Mine\Att 6 - Variance SD026\SD026

Variance Application.docx

i


Variance Application NPDES/SDS Permit Renewal

Permit No. MN0042536

April 2012 Updated: December 10, 2012

Table of Contents

1.0 Variance Application .............................................................................................................................. 1

1.1 Minn. Rule Part 7000.7000, Subp. 2 ......................................................................................... 43

1.1.1 Name and Address of the Applicant ............................................................................ 43

1.1.2 Signature of the Applicant ............................................................................................. 4

1.1.3 Description of Facility for which Variance is being Sought ........................................ 54

1.1.4 Nature of the Variance Sought ..................................................................................... 65

1.1.4.1 Parameters for which Variance is Requested ................................................ 65

1.1.4.2 Period of Time for which Variance is Requested .......................................... 86

1.1.4.3 Reasons Relied upon by the Applicant in Requesting the Variance ............. 87

1.1.5 Economic Burden ....................................................................................................... 119

1.1.6 Technological Feasibility ......................................................................................... 1510

1.1.7 Other Data or Information Required by Rule or Standard ....................................... 1912

1.1.8 Other Relevant Data or Information Required by Agency ...................................... 1912

1.1.8.1 General Description of Materials Discharged, Nature of Materials and

Proposed Methods for Control .................................................................. 1912

1.1.8.2 Proposed Plan to Reduce Emission Levels to Lowest Possible ................ 2013

1.1.8.3 Effect on Air, Water and Land Resources which will Result from Approval

of Variance ................................................................................................ 2214

1.1.8.4 Statement of Alternatives to Proposed Operation which have been

Considered ................................................................................................. 2719

1.1.8.5 Effects from Denial of Variance ............................................................... 2719

1.2 Variance Requirements Relative to Minn. Rule Part 7052.0280 and 7052.0320 ................. 2719

1.3 United States Environmental Protection Agency (EPA) Facility Specific Variance

Application ............................................................................................................................ 2820

2.0 References…………………... ......................................................................................................... 2921

S-44





ii

List of Tables

Table 1 SD026 Parameters of Concern Water Quality Summary (2005 through 2011) .................. 2

Table 2 Effectiveness, Implementation, and Cost Information for Potential Treatment

Technologies at SD026 .................................................................................................. 13

Table 3 SD026 Proposed Interim Period Limits .......................................................................... 22

Table 4 Relative Salt Tolerance of Various Cultivated Plants* ................................................... 26



Table 3 Relative Salt Tolerance of Various Cultivated Plants* 18

List of Figures

Figure 1 General Site Layout SD026

Figure 2 SD026 Ionic Composition

Figure 3 Water Quality Data: Bicarbonate

Figure 4 Water Quality Data: Hardness, Total

Figure 5 Water Quality Data: Specific Conductance

Figure 6 Water Quality Data: Total Dissolved Solids

List of Appendices

Appendix A EPA Facility Specific Standard Variance Data Sheet

Appendix B EPA Interim Economic Guidance – Worksheets:

Worksheet A: Pollution Control Project Summary Information

Worksheet G: Calculation of Total Annualized Project Costs

Data Needed to Calculate the Primary and Secondary Indicators (for Worksheets

H, I, J, K, and L)

Worksheet H: Calculation of Earnings before Taxes with and without Pollution

Control Projects Costs

Worksheet I: Calculation of Profit Rates with and without Pollution Control

Project Costs

Worksheet J: Calculation of the Current Ratio

Worksheet K: Calculation of the Beaver’s Ratio

Worksheet L: Debt to Equity Ratio

Financial Analysis Summary

Worksheet N: Factors to Consider in Making a Determination of Widespread

Social and Economic Impacts

S-44





iii

Appendix C Summary: Comprehensive Review of Potential Treatment Technologies for

SD026

S-44





1

1.0 Variance Application

The Hoyt Lakes Mine Area is an inactive open pit taconite mine located north of Hoyt Lakes,

Minnesota and adjacent to the Hoyt Lakes Tailings Basin Area. Discharges from the Mine Area are

administered under Minnesota Pollution Control Agency (MPCA) National Pollutant Discharge

Elimination System (NPDES)/State Disposal System (SDS) Permit MN0042536 (Permit). The

Permit is currently held by Cliffs Erie LLC (CE). The current Permit was issued May 4, 2001,

expired November 30, 2005, and was last modified on May 6, 2011. In accordance with Chapter

7.1.68 of the Permit, a complete NPDES permit application was submitted to the MPCA on February

28, 2005. While there are other discharges/outfalls authorized under the Permit, this variance

application is specific to the surface discharge station designated as SD026.

Station SD026 is a culvert which conveys Second (aka Knox) Creek under Dunka Road and is

located approximately 1,500 feet downstream from the groundwater seep that forms the headwaters

of Second Creek. The water discharged through SD026 consists of both groundwater seepage (which

likely originates in part from Cell 1E of the Hoyt Lakes Tailings Basin) and stormwater runoff ( from

the area between the railroad embankment and Dunka Road). Second Creek is a tributary of the

Partridge River within the Lake Superior watershed and is an unlisted water and as such, has the

default beneficial use classifications of 2B, 3C, 4A, 4B, 5, and 6, as described in Minnesota Rule

Chapter 7050.0430.

The parameters discussed in this variance application are total dissolved solids (TDS), bicarbonates

(alkalinity), total hardness, and specific conductance (parameters of concern). The current Permit

requires monitoring at SD026 for TDS, bicarbonates, and specific conductance; however, of these

three parameters only specific conductance has a corresponding effluent limit (1,000 µmhos/cm).

Monitoring is also required for carbonate hardness (as CaCO3) in the current Permit, although there

is no applicable water quality standard. While monitoring for total hardness (Ca + Mg as CaCO3) is

not required for SD026 under the current Permit, monitoring for this parameter has been conducted

and is elevated relative to the water quality standard. It is important to note that while there is no

monitoring requirement for total hardness in the current Permit, only carbonate hardness, this

variance request is intended to address total hardness.

Table 1 presents a summary of the water quality data for these parameters at SD026 from January

2005 through December 2011, based on the analytical results from the monthly Discharge

S-44





2

Monitoring Reports (DMRs) as reported by CE in accordance with the Permit. The discharge at

SD026 has elevated TDS, bicarbonates (alkalinity), total hardness, and specific conductance relative

to the water quality standard.

Table 1 SD026 Parameters of Concern Water Quality Summary (2005 through 2011)

Parameter of Concern Data Availability

Time Period

Average

Concentration

Maximum

Concentration

Water Quality

Standard

Alkalinity, Bicarbonates as

CaCO3 (mg/L) 2005 - 2011 454 687 250

Hardness, Total (mg/L) 2005 - 2011 610 780 500

Total Dissolved Solids (mg/L) 2008a - 2011 730 866 700

Specific Conductance

(µmhos/cm) 2005 - 2011 1,115 1,350 1,000

a Data are not available for TDS between 2005 and 2008.

CE has been performing studies and implementing a series of corrective actions to mitigate the

elevated concentrations of the parameters of concern as soon as possible. For SD026, these efforts

have included developing and implementing the following:

Short-Term Mitigation Evaluation and Implementation Plan for SD026: The objective of the

Short-Term Mitigation Evaluation and Implementation Plan for SD026 was to investigate

readily available and proven, applicable, technically and economically feasible methods and

technologies to partially or completely mitigate the elevated concentrations of the parameters

of concern in SD026 in the near future. The Short-Term Mitigation Evaluation and

Implementation Plan for SD026 (Barr, 2010b) was completed in 2010.

Implementation of Short-Term Mitigation: The Short-Term Mitigation Evaluation and

Implementation Plan for SD026 resulted in the implementation of a seepage collection and

pump-back system upstream of SD026 during the summer of 2011. This system will remain

in operation until a long-term compliance solution is determined.

NPDES Field Studies Plan – SD026 and NPDES Field Studies Report – SD026: The field

studies consisted of a year-long monitoring program. The objectives of the NPDES Field

Studies Plan – SD026 (Barr, 2010a) were to collect data to:

o Assess the impact of the elevated sulfate in SD026 on wild rice stands and

methylmercury concentration in receiving waters of the discharge;

S-44





3

o Assess the impact of elevated total dissolved solids, bicarbonates, hardness, and

specific conductance in SD026 on the water quality and aquatic life (fish and

macroinvertebrates) of receiving waters of the discharge; and

o Collect additional data to support continued evaluation of treatment alternatives.

The field studies were completed in 2011 (Barr, 2011a).

Long-Term Mitigation Evaluation and Implementation Plan for SD026: The objective of the

Long-Term Mitigation Evaluation and Implementation Plan for SD026 is to investigate

technically and economically feasible methods and technologies for permanent mitigation of

the elevated concentrations of the parameters of concern in SD026 with a focus on passive

treatment. The Long-Term Mitigation Evaluation and Implementation Plan for SD026 (Barr,

2012a) was completed in April 2012. This plan, combined with the Short-Term Mitigation

Evaluation and Implementation Plan for SD026, constitutes a comprehensive review of

potential treatment technologies to achieve compliance with water quality standards for the

parameters of concern at SD026.

Work Plan for Investigation of Membrane Treatment at SD026: In addition to the Long-Term

Mitigation Evaluation and Implementation Plan for SD026, a Work Plan for Investigation of

Membrane Treatment at SD026 (Barr, 2012b) was submitted to the MPCA in September

2012. This work plan includes a proposed schedule and protocol for conducting a pilot-scale

test of membrane (reverse osmosis) treatment for SD026.

While CE has been actively pursuing a solution for reducing the concentrations of the parameters of

concern, additional time is required to test, evaluate and implement a viable solution. Therefore, CE

requests a variance from the water quality standards for TDS, bicarbonates (alkalinity), total

hardness, and specific conductance at SD026.

This variance application is submitted in accordance with Minn. Rules Part 7000.7000 subpart 2 and

Minn. Rules part 7053.0280 and 7052.0320.

S-44





4

1.1 Minn. Rule Part 7000.7000, Subp. 2

Minnesota Rules 7000.7000 (Variances) provides in relevant part:

Subp. 2. In no case shall the board or commissioner grant a variance unless a written

application has been made to the board or commissioner. The application must be

served upon the commissioner.

Subsections 1.1.1 through 1.1.8 provide the information required by MN Rules 7000.7000, Subpart 2,

A. through H.

1.1.1 Name and Address of the Applicant

A. Name and address of the applicant and the person who prepared the application.

Applicant

Cliffs Erie LLC

Craig Hartmann, Area Manager – Facilities

P.O. Box 900

Hoyt Lakes, MN 55750-0900

218-225-3127

Person Who Prepared the Application

Barr Engineering Company

4700 West 77th

Street

Minneapolis, MN 55435-4803

1.1.2 Signature of the Applicant

B. The signature of the applicant or authorized representatives.

Craig Hartmann

Area Manager – Facilities

Cliffs Erie LLC

S-44





5

1.1.3 Description of Facility for which Variance is being Sought

C. A description, including the location, of the business, plant, system, or facility for which a

variance is sought.

The Hoyt Lakes Mine Area is an inactive open pit taconite mine located primarily in Sections 1, 2,

11-16 and 21-28 of Township 59 North, Range 14 West in St. Louis County, Minnesota. The Mine

Area was formerly owned and operated by LTV Steel Mining Company (LTVSMC) and was

purchased by CE in 2001 after LTVSMC declared bankruptcy and ceased operation of the mine.

Currently, the facility is covered by an approved Closure Plan which states “The overall objective of

the Closure Plan is to develop the site as a brownfield location for a future mineral

processing/industrial site. Significant taconite reserves remain in the area and it may be possible to

utilize the facilities as a base for construction of a direct steel making operation. In addition, several

Cu/Ni deposits are located to the east of the plant.” One company is proposing reuse of portions of

the facility, which may lead to the development of a Cu/Ni mine and value added metals plant in the

area. In either case, the presence of the facility would also make an excellent heavy industrial site.

The Closure Plan and details have been developed in cooperation with the MDNR, MPCA and other

local governments and agencies as appropriate. The Closure Plan will be available at the MDNR

offices in Hibbing and St. Paul and at the MPCA offices in St. Paul. In general, all environmental

hazards will be remediated, inactive pit areas closed, all buildings and structures not part of the

brownfield development will be demolished, and all associated sites reclaimed and vegetated. The

crushing/concentrating facilities, shops, warehouses, offices, railroad/dock and all utilities a t the site

will be left in place as part of the brownfield site. In the absence of brownfield development, these

structures will be demolished and the land reclaimed.

Tthe principal activities at the facility are related to maintenance and closure. The facility, as

covered by the Permit, consists of mine pits; stockpile areas; haul roads, railways, and railroad yards;

plant areas; material and equipment storage areas; and non-domestic wastewater treatment systems.

Of the nine surface discharge stations listed in the Permit, three four are currently active (SD008,

SD012, SD026, and SD033), one is active but unauthorized (SD030), and five four are currently

inactive (SD008, SD009, SD010, SD011, and SD013). All surface discharge stations, with the

exception of SD026, are pump dewatering or gravity overflow discharges from former mine pits.

S-44





6

This variance document addresses the surface discharge station designated as SD026. Station SD026

is a culvert which conveys Second Creek under Dunka Road and is located approximately 1,500 feet

downstream from the groundwater seep that forms the headwaters of Second Creek (in the southwest

quarter of the southwest quarter of the northeast quarter of Section 16, Township 59 North, Range 14

West). The general site layout is shown on Figure 1. Second Creek is a tributary of the Partridge

River within the Lake Superior watershed and is an unlisted water and as such, has the default

beneficial use classifications of 2B, 3C, 4A, 4B, 5, and 6, as described in Minnesota Rule Chapter

7050.0430.

The water discharged through SD026 consists of both groundwater seepage and stormwater runoff.

SD026 receives groundwater seepage which likely originates in part from Cell 1E of the Hoyt Lakes

Tailings Basin. SD026 also receives a mixture of stormwater runoff from the area between the

railroad embankment and Dunka Road, including the former Area 2 Shops Area and former

reclaimed Knox Rail Refueling Area.

CE has been performing studies and implementing a series of corrective actions to achieve

compliance with SD026 water quality effluent limits for the parameters of concern as soon as

possible. As part of short-term mitigation, a seepage collection and pump-back system upstream of

SD026 was constructed and placed into operation during the summer of 2011. Groundwater seepage

is collected from a pond upstream of SD026 and pumped to Cell 1E of the Hoyt Lakes Tailings

Basin. Due to this modification, the discharge through SD026 has significantly decreased in volume.

The remainder of the flow continues to discharge as Second Creek.

1.1.4 Nature of the Variance Sought

D. The nature of the variance sought, including an identification of the applicable rules or

standards from which a variance is sought, the period of time for which it is sought, and the

reasons relied upon by the applicant in requesting the variance.

1.1.4.1 Parameters for which Variance is Requested

CE requests a variance from the SD026 water quality effluent limits (assumed to be the applicable

water quality standards) for total dissolved solids (TDS), bicarbonates (alkalinity), total hardness,

and specific conductance (parameters of concern) at SD026.

While the current Permit does not contain effluent limits for three of the four parameters of concern

(TDS, bicarbonates, and total hardness), the water quality standards were assumed to be applicable

S-44





7

effluent limits because the discharge at SD026 forms the headwaters of Second Creek (Class 2B, 3C,

4A, 4B, 5, and 6 waters). The water quality standards define the goals for a water body by

designating its highest attainable uses and setting the criteria that protect those uses.

Based on the monitoring data, the concentrations of these parameters at SD026 have exceeded (but

are relatively close to) the potentially applicable water quality standards from Minnesota Rules

Chapter 7050.0223:

Hardness – 500 mg/L – Class 3C (industrial cooling and materials transport)

and Minnesota Rules Chapter 7050.0224:

Bicarbonates – 5 meq/L (250 mg/L as CaCO3) – Class 4A (irrigation)

Specific conductance – 1,000 µmhos/cm – Class 4A (irrigation)

TDS – 700 mg/L – Class 4A (irrigation)

Table 1 presents a summary of the water quality data at SD026 and compares the water quality

standards to the current water quality data for SD026. The primary constituents contributing to the

elevated TDS and specific conductance include bicarbonate, sulfate, and hardness (calcium and

magnesium). Figure 2 illustrates the major anions and cations that are contributing to the TDS of the

discharge at SD026.

Comparisons between the monitoring data for the parameters of concern at SD026 and the water

quality standards for Second Creek are shown in Figures 3 through 6.

As discussed above, the current Permit does not contain effluent limits for three of the four

parameters of concern (TDS, bicarbonates, and total hardness) and monitoring is only required for

TDS, bicarbonates, and specific conductance. Monitoring for total hardness (Ca + Mg as CaCO3) is

not required by the current Permit; however, monitoring for carbonate hardness (as CaCO3) is

required. While a Consent Decree between MPCA and CE was issued in April 2010 and required CE

to begin evaluating potential treatment technologies, meeting a permit limit equivalent to the water

quality standard for each of the parameters of concern is substantially different than any limit CE has

been required to comply with.

S-44





8

1.1.4.2 Period of Time for which Variance is Requested

CE requests this variance remain in effect for the duration of the reissued permit (no less than five

years).

1.1.4.3 Reasons Relied upon by the Applicant in Requesting the Variance

CE requests a variance from the water quality standards for total dissolved solids (TDS),

bicarbonates (alkalinity), total hardness, and specific conductance at SD026 based on the following:

It is not feasible to immediately implement a remedy to effectively mitigate or treat the

parameters of concern (TDS, bicarbonates, total hardness, and specific conductance) to the

applicable water quality standards. A variance is necessary to provide the time required to

investigate, test and implement a technically and economically feasible method for permanent

mitigation of the parameters of concern.

The cost of an active system would be a substantial burden to this nonoperational facility.

Passive long-term mitigation alternatives are not only the most compatible with this site, but

also the most economically feasible.

The results of the field studies indicate that there are no anticipated significant impacts

related to water uses, or to air or land resources.

The basis for these reasons are presented in the paragraphs below.

Because the facility is inactive and sources of the SD026 discharge are groundwater seepage and

stormwater runoff, there are no process changes that can be made to alter the discharge to meet the

water quality standards. Thus, long-term water treatment and/or mitigation will be required to

achieve the required reductions.

Analysis of the overall composition of the water discharged at SD026 indicates that bicarbonate is

the most significant contributor to the concentration of TDS (refer to Figure 2), followed by sulfate

and hardness (calcium and magnesium). Because the concentrations of the four parameters of

concern are relatively close to the applicable water quality standards, the reduction of any or all of

these contributing constituents would likely also result in an overall reduction of TDS and specific

conductance to concentrations less than the water quality standards. While removal of sulfate is not

easily accomplished, bicarbonates and hardness are common water constituents that can be removed

by active treatment processes such as chemical precipitation, ion exchange, and membrane filtration .

S-44





9

However, because the Mine Area is an inactive facility, there are no existing, active wastewater

treatment facilities to which the discharge from SD026 could be immediately routed. Because

implementation of a treatment or mitigation technology will be necessary, a more passive system

with minimal operation and maintenance requirements is preferred over active treatment , due to the

inactive status of the facility and the desire to implement a treatment or mitigation technology that

will be both effective and reliable on a long-term basis.

CE has been actively pursuing a viable treatment/mitigation technology for SD026 since April 2010.

Both a Short-Term Mitigation and Implementation Plan for SD026 and a Long-Term Mitigation and

Evaluation and Implementation Plan for SD026 have been completed. The focus of these plans is to

identify, test, and evaluate alternative mitigation or treatment measures. Each of these plans is

discussed in more detail below.

The objective of the Short-Term Mitigation Evaluation and Implementation Plan for SD026 was to

investigate readily available and proven, applicable, technically and economically feasible methods and

technologies to partially or completely mitigate the elevated concentrations of the parameters of concern

in SD026 during the period the field studies were conducted. The conclusion of this report was that

the treatment alternatives evaluated required significant time for bench testing, pilot testing , and full-

scale implementation, along with significant capital and annual operation and maintenance costs, and

that they could not be readily implemented to meet the water quality standards. Therefore, the non-

treatment mitigation option of seepage collection and pump-back was selected for implementation

under the required short-term action plan.

The Long-Term Mitigation Evaluation and Implementation Plan for SD026 was completed with the

objective of identifying and evaluating alternatives that could potentially mitigate/reduce the existing

elevated concentrations of the parameters of concern and sulfate in SD026 over the long-term,

building on the work completed as part of the Short-Term Mitigation Evaluation and Implementation

Plan, NPDES Field Studies – SD026, and bench testing that was performed related to the removal of

the same parameters of concern at SD033 (Barr, 2011b; Barr, 2011c). Combined, these documents

constitute a comprehensive review of potential treatment technologies to achieve compliance with

water quality standards for the parameters of concern at SD026.

The alternatives identified and evaluated in Long-Term Mitigation Evaluation and Implementation

Plan for SD026 include mitigation measures that over the long-term would limit the concentrations

of dissolved solids in the SD026 discharge by reducing the loading of sulfate and the parameters of

S-44





10

concern through methods such as altering the attenuation or fate of the parameters within the

watershed. Section 5.0 of the Long-Term Mitigation Evaluation and Implementation Plan for SD026

presents a summary of the effectiveness, implementability, long-term performance, and cost

considerations relative to the alternatives to address the parameters of concern at SD026. Based on

this evaluation, several mitigation measures and passive treatment systems present viable

alternatives. However, both pre-implementation study efforts and a pilot-scale testing phase are

required to verify effectiveness and provide input to a design prior to full-scale implementation.

Additionally, CE has agreed to conduct further evaluation of an active treatment technology,

membrane treatment (reverse osmosis), in accordance with the Work Plan for Investigation of

Membrane Treatment at SD026 submitted to the MPCA in September 2012. As with the mitigation

measures and passive treatment systems identified in the Long-Term Mitigation Evaluation and

Implementation Plan for SD026, a pilot-scale testing phase for membrane treatment is required to

verify effectiveness and provide input to a design prior to any full-scale implementation.

Section 6.3 of the Long-Term Mitigation Evaluation Plan for SD026 presents a proposed milestone

schedule for implementation of the recommendations provided in that plan and Section 3.4 of the

Work Plan for Investigation of Membrane Treatment at SD026 presents a proposed milestone

schedule specific to membrane treatment. Treatment of the SD026 discharge to the water quality

standards is technologically feasible. However, as concluded in the Long-Term Mitigation and

Implementation Plan for SD026 (Section 6.3), time will be required for bench testing, pilot testing,

and full-scale implementation of technically and economically feasible methods for permanent

mitigation of the elevated parameters.

The estimated costs of implementing each of the alternatives considered are presented in Table

2Section 5.4 of the Long-Term Mitigation Evaluation and Implementation Plan for SD026 and

discussed further in Section 1.1.5. The estimated expenses associated with identifying and

implementing an effective long-term treatment technology to reduce each of the parameters to a level

that full compliance with water quality standards is consistently achieved, will result in a significant

economic burden. The facts supporting each basis (economic and technical) are presented in the

sections below.

While the concentrations of TDS, bicarbonates, total hardness, and specific conductance at SD026

are elevated relative to the water quality standards, and this discharge would continue throughout the

evaluation and implementation of a long-term mitigation technology, granting this variance will not

S-44





11

impair the existing beneficial uses or the level of water quality necessary to protect the beneficial

uses of the receiving stream, as documented in the results presented in NPDES Field Studies Report –

SD026. The results of these studies support continued discharge at the current concentrations while a

long-term solution is identified and implemented. Additional information on the impacts of the

SD026 discharge is presented in Section 1.1.8.3.

1.1.5 Economic Burden

E. If the applicant seeks a variance primarily on the grounds of economic burden, financial

statements prepared or approved by a certified public accountant, or other person acceptable to

the agency, which shall fairly set forth the status of the business, plant, system, or facility for

each of the three financial years immediately preceding the year of the application, and an

analysis of the effect of such financial status if the variance is not granted.

While the cost of treating the discharge from SD026 to reduce the parameters of concern is not the

primary sole grounds for requesting this variance, the economic impact of the various treatment

systems should be considered. This facility is inactive and not producing a product . Closure

activities at the facility have begun and CE has on-going financial responsibilities associated with

these activities.

CE’s goal is to progress toward reduction of the elevated concentrations of the parameters of

concern, providing for the potential redevelopment of the site. As stated in Section 1.1 .4.3, passive

(non-mechanical) long-term mitigation alternatives are not only the most compatible with this site,

but also the most economically feasible. While there may be active (or mechanical) treatment

alternatives that would reduce the concentration of the parameters of concern, they would require

active operation and maintenance costs in perpetuity. While it is not possible to know the financial

situation of a potential redevelopment enterprise, the perpetual financial responsibility of on -going

treatment would likely render this site economically infeasible for redevelopment.

Table 2 of this document and Section 5.0 of the Long-Term Mitigation Evaluation and

Implementation Plan for SD026 presents an overview of the effectiveness, implementability, long-

term performance, and cost considerations relative to the alternatives to address the parameters of

concern at SD026. The estimated costs represent an estimate of the total cost of each technology as a

net present value (20 years, 3.5% discount rate) and are considered conceptual level costs or Class 5

estimates (according to the Association for the Advancement of Cost Engineering International) and

as such should only be used for comparing the relative value of the technologies evaluated . The

S-44





12

estimated net present values of the active treatment alternatives range from $10,700,000 for lime

softening to $22,700,000 for membrane treatment, while the net present values of the passive

treatment alternatives range from $2,600,000 for enhanced natural attenuation to $14,800,000 for a

floating wetland. These significant differences in net present value further demonstrate that a passive

treatment alternative would be more economically feasible than an active treatment alternative.

S-44

Table 2 Effectiveness, Implementation, and Cost Information for Potential Treatment Technologies at SD026

Sulfate Bicarbonate HardnessTotal Dissolved

Solids

Specific

Conductivity

Suitability for

Closed SiteInvestigations Required Capital Cost Annual O&M Cost Net Present Value3

HighCan be implemented in the near future,

monitoring only790,000$ 150,000$ 2,600,000$

MediumRequires hydraulics and siting evaluations

and pilot testing prior to full scale

implementation

3,800,000$ 160,000$ 5,600,000$



implementation

11,800,000$ 220,000$ 14,800,000$

LowRequires hydraulics, siting evaluations and

bench testing prior to full scale

implementation

6,900,000$ 270,000$ 10,700,000$

LowRequires hydraulics, siting evaluations,

bench testing, and pilot testing prior to full

scale implementation

15,100,000$ 1,100,000$ 30,000,000$

Low

Requires hydraulics, siting evaluations and

pilot testing of membranes and brine

concentrate management prior to full


10,700,000$ 900,000$ 22,700,000$

1. Cost for this option only includes treatment of the parameters of concern (does not specifically include treatment of sulfate to 10 mg/L).

3. 20 years, 3.5%

2. Cost for this option includes treatment of sulfate in addition to the parameters of concern; however, treatment of sulfate to 10 mg/L is unproven.

5. Costs may vary from those presented in previously submitted Plans, due to additional information obtained during interim periods.

4. These cost estimates are considered conceptual level costs or Class 5 estimates (according to the Association for the Advancement of Cost Engineering International), and should only be used for comparing the relative value of the technologies evaluated in this

Plan. The typical associated level of accuracy of Class 5 cost estimates is ±25 to 100%.

Key:

Likely to be effective in meeting the water quality standard at end-of-pipe

Ability to meet water quality standard uncertain or requires additional testing to demonstrate

Unable to meet water quality standard at end-of-pipe

Implementation Considerations Estimated Costs4,5Effectiveness in Meeting Water Quality Standards

Ion Exchange (modified Sulf-IX)1

Membrane Treatment (Reverse Osmosis)1

Alternative

Enhanced Natural Attenuation2

Surface-Flow Wetland/Lagoon2

Lime Softening1

Floating Wetland2

Notes:

S-44





14

While CE is not requesting this variance primarily solely on the grounds of economic burden, the

cost of an active treatment system will be a substantial burden to a nonoperational facility.

Furthermore, Wwhile it is not possible to know the financial situation of a potential redevelopment

enterprise, the perpetuallong-term financial responsibility of on-going active treatment willwould

likely be a consideration renderin the this site economically infeasibilitye for redevelopment. The

additional time required to continue to evaluate both the technological and economic feasibility of

the potential treatment alternatives is critical.

To aid in the determination of economic burden as it relates to this variance request, CE has provided

additional financial information in Appendix B via the worksheets associated with the EPA Interim

Economic Guidance – Workbook (EPA-823-B-95-002; March 1995). Specifically, the contents of

each worksheet are as follows:

Worksheet A contains the rationale and approach to provide additional treatment to the water

quality standards for the pollutants for which variance are being sought.

Worksheet G contains the annualized costs using the methods from the EPA Interim

Economic Guidance.

Worksheets H through L provide information related to the financial impact to CE of not

granting the variance.

Worksheet N provides information on other factors to consider in making a determination of

widespread social and economic impacts to the surrounding area. In addition to the

information presented in the worksheet CE purchases approximately $1.5 million of services

from various industries (utilities, consultants, equipment vendors, mechanical services, etc.)

throughout northern Minnesota. If the CE NPDES permits are not re-issued, future

development at this site will not be possible. Therefore, the following are at risk:

o Future employment in Northeastern Minnesota associated with potential new mining

operations at the CE site

o County and state tax revenues

o Mining royalties to the county and state

o Spin off industries impacted by mining

As stated previously, CE’s Hoyt Lakes Mine Area was formerly owned and operated by LTV Steel

Mining Company (LTVSMC) and was purchased by CE in 2001 after LTVSMC declared bankruptcy

and ceased operation of the mine. When operation of the mine ceased, 1,500 workers lost their jobs;

S-44





15

this had a major effect on the economy of the “mining towns” of Hoyt Lakes and Aurora and the

surrounding rural area. Mesabi Nugget, which is located west of this property on land that was also

formerly owned by LTVSMC, has restored approximately 120 jobs to the area. While this was a

positive move, it barely begins to offset the significant economic hardship in this area . Potential

future redevelopment would bring more jobs to the area both directly and through demand for other

services; however, this development may be constrained unless a variance applicable to the outfall is

granted.

As an example of a potential project dependent on reissuance of the Hoyt Lakes Mine Area

NPDES/SDS Permit, in a report prepared for PolyMet by the Labovitz School of Business and

Economics, 2012. NorthMet Economic Impact 2011 Update; Economic Impact of PolyMet’s

NorthMet Project on St. Louis County, Minnesota, the economic impact of the proposed NorthMet

project on the region includes:

360 direct mining jobs;

330 jobs in related dependent industries;

300 jobs dependent on household spending;

Annual payroll spending of almost $330 million;

Approximately $515 million impact of mining output, or sales, on St Louis County; and

During peak construction approximately 800 jobs, $247 million in payroll taxes and $490 million in

sales impact.

1.1.6 Technological Feasibility

F. If the applicant seeks a variance on grounds that compliance is not technologically feasible, a

report from a registered professional engineer, or other person acceptable to the agency, stating

fully the reasons why compliance is not technologically feasible.

Treatment of the SD026 discharge to the water quality standards is expected to be technologically

feasible. However, as concluded in the Short-Term Mitigation and Implementation Plan for SD026

and the Long-Term Mitigation and Implementation Plan for SD026 , time will be required for bench

testing, pilot testing, and full-scale implementation of technically feasible methods for permanent

mitigation of the elevated parameters. The primary basis of this variance application is that meeting

the water quality standards for the parameters of concern is not technologically feasible by the next

anticipated permit reissuance date.

S-44





16




in SD026 during the period the field studies were conducted. The conclusion of this evaluation was

that all of the treatment alternatives evaluated required significant time for bench testing, pilot

testing, and full-scale implementation, along with significant capital and annual operation and

maintenance costs, and that they could not be readily implemented to meet the water quality

standards. Therefore, the non-treatment mitigation option of seepage collection and pump-back was

selected for implementation under the required short-term action plan.

Given that no technologies were identified that could be both be readily implemented and function as

a long-term solution, CE completed a Long-Term Mitigation Evaluation and Implementation Plan for

SD026 with the objective of identifying and evaluating alternatives that could potentially

mitigate/reduce the existing elevated concentrations of the parameters of concern and sulfate in

SD026 over the long-term, building on the work completed as part of the Short-Term Mitigation

Evaluation and Implementation Plan for SD026, NPDES Field Studies – SD026, and bench testing

that was performed related to the removal of the same parameters of concern at SD033 (Barr, 2011b;

Barr, 2011c).

The alternatives identified and evaluated in the Long-Term Mitigation Evaluation and

Implementation Plan for SD026 include mitigation measures that over the long-term would limit the

concentrations of dissolved solids in the SD026 discharge by reducing the loading of sulfate and

other parameters of concern through methods such as altering the attenuation or fate of the

parameters within the watershed. The alternatives evaluated included natural attenuation, enhanced

natural attenuation, floating wetland, and a surface- flow wetland/lagoon.

The alternatives were evaluated against the following criteria: effectiveness, implementability, long-

term performance, and cost. Section 5.0 of the Long-Term Mitigation Evaluation and

Implementation Plan for SD026 presents a summary of the treatment options evaluated for SD026.

Based on this evaluation, the following next steps were recommended for implementation of

mitigation activities at SD026:

Evaluation of natural attenuation by conducting additional monitoring along the flow path

between the seep and Dunka Road.

S-44





17

Mapping of the watershed and characterizing the existing wetland vegetation to evaluate the

potential for increasing the hydraulic retention time to enhance natural attenuation or to install a

lagoon and surface-flow wetland.

Bench and pilot testing of nutrient addition to enhance primary production for the reduction of

bicarbonate and other parameters of concern.

Implementation of natural attenuation, enhanced natural attenuation, or a lagoon and surface-flow

wetland system to reduce concentrations of the parameters of concern at SD026.

After further discussions and correspondence with the MPCA, natural attenuation was removed from

consideration and thus will not be evaluated further.

In the MPCA’s July 25, 2012 letter to CE (MPCA, 2012), the MPCA indicated that further evaluation

of an active treatment technology, such as membrane treatment, would also be required. This

evaluation is in addition to the evaluation of passive treatment technologies at SD026 (as proposed in

the Long-Term Mitigation Evaluation and Implementation Plan for SD026). Therefore, a Work Plan

for Investigation of Membrane Treatment at SD026 was submitted to the MPCA in September 2012.

This work plan included a proposed schedule and protocol for conducting a pilot-scale test of

membrane treatment of SD026. Specifically, the pilot-scale test plan includes evaluation of reverse

osmosis technology and evaluation of associated concentrate (brine) management approaches and the

use of concentrate volume reduction technologies.

During the development of the Short-Term Mitigation Evaluation and Implementation Plan for

SD026 (Barr, 2010b) and the Long-Term Mitigation Evaluation and Implementation Plan for SD026

(Barr, 2012a), CE has undertaken a comprehensive review of potential treatment technologies to

achieve compliance with water quality standards for the parameters of concern at SD026. This

comprehensive review included:

A literature review of mitigation/treatment technologies for the parameters of concern and

sulfate (Barr, 2010b; Section 3.0).

Preliminary screening of potential mitigation/treatment alternatives based on preliminary

assessments of effectiveness, implementability, and cost to identify a limited number of

potentially feasible alternatives for detailed evaluation (Barr, 2010b; Section 5.1 and Table

2).

S-44





18

Conceptual development of a plan for implementation of mitigation/treatment systems for the

parameters of concern and sulfate that could be applied to the discharge at SD026 (Barr,

2010b; Section 4.0 and Sections 5.2 through 5.4).

Evaluation of the feasibility of the mitigation/treatment technologies that were selected from

the preliminary screening process based on effectiveness, implementability, and cost (Barr,

2010b; Section 5.0).

Additional screening of potential mitigation alternatives for long-term implementation

including a review of the technologies included in the preliminary screening (Barr, 2012a;

Section 3.0).

Detailed evaluation of mitigation/treatment technologies that may prove effective for

implementation at SD026 for removal of the parameters of concern and sulfate (Barr, 2012a;

Section 4.0).

Evaluation of the feasibility of implementing the mitigation/treatment technologies based on

effectiveness, implementability, long-term performance, and cost (Barr, 2012a; Section 5.0

and Table 3).

Recommendations for implementation (Barr, 2012a; Section 6.0).

Based on the results of the screening processes, the following potential treatment technologies were

evaluated further based on effectiveness, implementability, long-term performance, and cost:

Natural attenuation

Enhanced natural attenuation

Surface-flow wetland/lagoon

Floating wetland

Lime softening

Ion exchange (Sulf-IX)

Membrane treatment (reverse osmosis)

Table 2 summarizes the evaluation of effectiveness, implementability, and cost for each of these

potential treatment technologies. Appendix C contains:

Further details related to the review and evaluation of the potential treatment technologies

and references to the information sources.

S-44





19

Further details related to each of the potential treatment technologies selected for further

evaluation.

Based on this comprehensive review of potential treatment technologies for SD026, CE has selected

three potential treatment technologies for further evaluation through pilot testing:


Surface-flow wetland/lagoon


A pProposed milestone schedules waswere developed as part of this reportthe Long-Term Mitigation

Evaluation and Implementation Plan for SD026 and the Work Plan for Investigation of Membrane

Treatment at SD026. Iin total, the pre-implementation studies, design of the pilot systems, and

operation of the pilot testing is expected to occur over the course of the next permit cycle.a minimum

of three to four years, not including time for agency review and approval of work plans submitted

throughout the process. The complete implementation of full scale mitigation for SD026 (including

design and construction) could potentially be completed in approximately six years, again not

including time for agency review and approvals and any other permitting that may be required. The

proposed milestone schedule for the testing and implementation of mitigation at SD026 is outlined in

Section 6.3 of the Long-Term Mitigation Evaluation and Implementation Plan for SD026 .

1.1.7 Other Data or Information Required by Rule or Standard

G. Other additional data or information that is required by any applicable agency rule or standard.

No additional data has been required by the MPCA.

1.1.8 Other Relevant Data or Information Required by Agency

H. Any other relevant data or information that the board or the commissioner deems essential to a

determination on the application, including, but not limited to the following:

1.1.8.1 General Description of Materials Discharged, Nature of Materials and Proposed Methods for Control

1. A general description of the materials handled or processed by the applicant that are

pertinent to the subject application, and a statement of the nature and quantity of the

materials being discharged, emitted, or disposed of, and that can reasonably be expected

S-44





20

to be discharged, emitted, or disposed of during the period of the proposed variance, and

proposed methods for the control of these materials.

A general description of the Hoyt Lakes Mine Area and the characteristics of the SD026 discharge

are provided in Section 1.1.3. Additional summaries of the water quality data are included in the

Hoyt Lakes Mine Area NPDES/SDS Supplemental Permit Information package, which is being

submitted in conjunction with this variance request.

The discharge at SD026 consists of both groundwater seepage (likely originating in part from Cell 1E

of the Hoyt Lakes Tailings Basin) and stormwater runoff (from the area between the railroad

embankment and Dunka Road). As part of short-term mitigation, a seepage collection and pump-

back system upstream of SD026 was constructed and placed into operation during the summer of

2011. This system significantly decreases the discharge at SD026 by collecting groundwater seepage

from the existing pond upstream of SD026 and pumping it to Cell 1E of the Hoyt Lakes Tailings

Basin. This short-term mitigation seepage collection and pump-back system will remain in operation

during the period of the proposed variance.

Because the sources of the SD026 discharge are groundwater seepage and stormwater runoff, there

are no process changes that can be made to eliminate the discharge or reduce the concentration of the

parameters of concern in the discharge. The proposed method of control is to continue the pursuit of

long-term reduction of the elevated concentrations of the parameters of concern through

implementation of the recommendations presented in the Long-Term Mitigation Evaluation and

Implementation Plan for SD026. Therefore, passive technologies that have lower need for

maintenance and monitoring are given preference over mechanical technologies.

1.1.8.2 Proposed Plan to Reduce Emission Levels to Lowest Possible

2. A comprehensive proposed plan indicating the steps to be taken by the applicant during

the period of the variance, even if the applicant is seeking a permanent variance, to

reduce the emission levels or discharges to the lowest limits practical.

As presented in the sections above, the sources of the SD026 discharge are groundwater seepage and

stormwater runoff and there are no process changes that can be made to eliminate the discharge or

reduce the concentration of the parameters of concern in the discharge. CE has been actively

pursuing alternatives to meet the water quality standards, including completion of several studies

S-44





21

focused on the identification and evaluation of viable mitigation and/or treatment technologies and

has developed a well-designed and focused process to identify the most appropriate alternative.

The most recent report, Long-Term Mitigation Evaluation and Implementation Plan for SD026 ,

recommended the following next steps for implementation of mitigation activities at SD026:

Further evaluation of natural attenuation by conducting additional monitoring along the flow path

between the seep and Dunka Road.

Further evaluation of the potential for increasing the hydraulic retention time in the watershed to

enhance natural attenuation or to install a lagoon and surface-flow wetland through mapping of

the watershed and characterizing the existing wetland vegetation.

Further evaluation of nutrient addition to enhance primary production for the reduction of

bicarbonate and other parameters of concern through bench and pilot testing.

Implementation of natural attenuation, enhanced natural attenuation, or a lagoon and surface-flow

wetland system to reduce concentrations of the parameters of concern at SD026.

After further discussions and correspondence with the MPCA, natural attenuation was removed from

consideration and thus will not be evaluated further.

Section 6.0 of the Long-Term Mitigation and Implementation Plan for SD026 outlined a detailed

process for implementing the report recommendations. A proposed milestone schedule for

implementation of the pre-implementation studies, pilot testing, and full-scale implementation (if

appropriate) was developed as discussed in Section 1.1.6.

Additionally, as discussed in Section 1.1.6, CE has agreed to conduct further evaluation of an active

treatment technology, membrane treatment (reverse osmosis), in accordance with the Work Plan for

Investigation of Membrane Treatment at SD026 submitted to the MPCA in September 2012. This

work plan includes a proposed schedule and protocol for conducting a pilot-scale test of membrane

treatment of SD026.

Because there are no process changes that can be made to reduce or eliminate the parameters of

concern in the SD026 discharge and there is little to no impact from these parameters on the

receiving stream (see Section 1.1.8.3), CE proposes new Interim Period Limits consistent with the

current water quality for the period of the variance. The proposed Interim Period Limits for each of

S-44





22

the parameters of concern are shown in Table 23. These Interim Period Limits are based on a

reasonable potential to exceed analysis using available monitoring data from January 2005 through

December 2011 with a 99-percent confidence interval, consistent with the United States

Environmental Protection Agency (US EPA) Technical Support Document for Water Quality-Based

Toxics Control (US EPA, 1991). This is the level currently achievable at the SD026 discharge.

Table 23 SD026 Proposed Interim Period Limits

Parameter of Concern

Proposed Interim Period

Limits (Daily Max and

Monthly Average)

Water Quality

Standard

Alkalinity, Bicarbonates as CaCO3 (mg/L) 863 250

Hardness (mg/L) 955 500

Total Dissolved Solids (mg/L) 1,046 700

Specific Conductance (µmhos/cm) 1,639 1,000

1.1.8.3 Effect on Air, Water and Land Resources which will Result from Approval of Variance

3. A concise statement of the effect upon the air, water, and land resources of the state and

upon the public and other persons affected, including those residing in the area where

the variance will take effect, which will result from board or commissioner approval of

the requested variance.

Air Impacts

Because hardness, total dissolved solids, bicarbonates, and specific conductance are all the result of

dissolved minerals in the water, there are no expected air impacts. The minerals will remain

dissolved in the water at the temperatures and chemistry at which Second Creek and the Partridge

and St. Louis Rivers flow. Therefore, there will not be any air impacts from SD026 if a variance for

the parameters of concern is granted.

Water Impacts

A year-long field study (NPDES Field Studies Report – SD026, Barr, 2011a) was conducted to

characterize and assess the water quality and biological condition of streams directly adjacent and

downstream of outfall SD026. Testing was completed on the receiving water – Second Creek and a

nearby control stream – Bear Creek.

S-44





23

Water quality sampling and Whole Effluent Toxicity (WET) testing were conducted to evaluate

whether the groups of constituents originating from SD026 have toxic properties. Biological

monitoring for aquatic invertebrates was also conducted to determine the effect of discharges from

SD026; however, no fish monitoring was conducted due to lack of suitable habitat in Second Creek

downstream of SD026. Biological monitoring is important because it highlights the true in-stream

effect of a given discharge and is able to separate the “chemical” effect from the “habitat” effect. A

habitat evaluation was also conducted as part of the field studies to quantify the difference in habitat

quality between the downstream sites and the control sites used in the study.

The results of this study indicate that the chemical composition of the water from the permitted

outfall SD026 is different from the composition of the receiving water – Second Creek, and is

different from waters that served as reference or background sites for the field investigation. As

noted, the SD026 discharge has elevated concentrations of the parameters of concern.

Whole Effluent Toxicity (WET) Tests

The chronic WET test results strongly suggest that it is unlikely that the constituents observed and

the concentration of the constituents observed will cause any mortality of aquatic life in Second

Creek downstream of SD026. Reproduction (which is a much more sensitive indicator than

mortality) of the test species C. dubia was considered to be reduced in two tests compared to the

reference site Bear Creek and the Partridge River. It should be noted that reproduction was not

severely reduced in SD026 compared to the reference sites and for one test there was no significant

difference between SD026 and the reference sites.

WET testing (particularly chronic tests with C. dubia) is a sensitive methodology and the results

suggest that the tailings basin water, which was the primary source of water to SD026 during the

study period, is lacking any notable toxicant and the additive or cumulative effects of the constituents

present are not significant. A statistical analysis of outfall SD026 water and the receiving waters

suggest that reduced reproduction for C. dubia in some tests is not due to toxicity, but rather is

largely due to nutrient constituents that are lacking in the SD026 water, including organic carbon,

phosphorus, nitrogen, and possibly some trace metals. It does not appear that bicarbonate or

hardness are responsible for the WET test results that indicate reproductive differences between

water from SD026 and the reference sites.

S-44





24

Macroinvertebrates

Overall, the macroinvertebrate community in Second Creek just downstream of outfall SD026 is

comparable to the macroinvertebrate community in Bear Creek (the chosen reference site) and there

is no evidence that the macroinvertebrate community in Second Creek is being notably impacted by

the discharge from SD026.

In Second Creek, just downstream of SD026, there are more sensitive species. It should be noted

that Second Creek has better habitat quality (according to the QHEI) than Bear Creek. However,

Second Creek has a much smaller watershed and flow compared to Bear Creek, and hence it is

expected that there will be less diversity simply due to the stream size and order. Again, due to the

similarity of the macroinvertebrate communities in Bear Creek and Second Creek, and due to an

overall high proportion of sensitive species, it can be concluded that there is no significant effect on

the macroinvertebrate community in Second Creek due to the SD026 discharge.

Summary of Field Study Results

Overall, the results from the Field Study stream investigation indicate that while the SD026 discharge

water has elevated concentrations of some parameters (e.g., hardness, total dissolved solids,

magnesium, sodium), the biological monitoring data for macroinvertebrates indicate no measurable

or notable effects in Second Creek compared to the data from the reference stream (Bear Creek).

Downstream River Water Users

For this study, the downstream river water users were separated into four groups: (1) Municipal

water treatment facilities, (2) Industrial river water users, (3) Other permitted river water users, and

(4) Non-permitted river water users. A separate analysis was conducted for each of the four groups.

While the analysis was general, the data presented are based on existing water quality data available

on the MPCA and Minnesota Department of Natural Resources (MDNR) websites.

Municipal Water Treatment Facilities – Based on a review of the water appropriation permits issued

by the MDNR1, the only municipal user of water in the vicinity of SD026 is the City of Hoyt Lakes.

However, the City of Hoyt Lakes appropriates water from Colby Lake which does not receive water

1 www.dnr.state.mn.us/waters/watermgmt_section/appropriations/wateruse.html

S-44





25

from Second Creek. Thus, the City of Hoyt Lakes is not affected by the discharge. There are no

municipal users of water downstream of SD026 on Second Creek or the Partridge River.

Industrial Water Users – Based on a review of the water appropriation permits issued by the MDNR,

there are no industrial uses of Second Creek or the Partridge River downstream of the discharge.

Minnesota Power’s Laskin Energy Center appropriates water from the Partridge River; however it is

located upstream of the river’s confluence with Second Creek. There are industrial water users

located further downstream on the St Louis River (United Taconite, Tate & Lyle Citric Acid, Inc.,

USG, Minnesota Power, Sappi, Heathmark, Inc. and WLSSD) which appropriate water from the St.

Louis River.

Other Permitted River Water Users – There are no appropriations permits for using the water for

agricultural irrigation (either crop or livestock watering) or for other uses.

Non-Permitted River Water Users – No unpermitted users are known to use either Second Creek or

the Partridge River.

In summary, the discharge through SD026 is unlikely to adversely affect downstream river water

users.

Land Resources

Because there are no permitted water appropriations for agricultural purposes (see above), and

because there is little if any agriculture in the area, it is unlikely that there will be impacts on row

crops, small grains or livestock irrigation. However, there may be unpermitted uses, so potential

impacts on a variety of crops, trees and grasses are noted below.

Table 3 4 provides a listing of garden crops and fruits that are the most sensitive to salinity: beans,

carrots, onions, radishes, strawberries, and raspberries (threshold levels ranging from 400 to 1,000

mg/L). Cabbage, lettuce, peppers, spinach, sweet potatoes, tomatoes, apples, pears, grapes, plums,

blackberries, and boysenberries are moderately sensitive to salinity with threshold levels of 500 to

1,300 mg/L.

S-44





26

Table 34 Relative Salt Tolerance of Various Cultivated Plants*

Non Tolerant

(0–1,400 mg/L)

Slightly Tolerant

(1,400–2,800 mg/L)

Moderately Tolerant

(2,400–5,600 mg/L)

Tolerant

(5,600–11,200 mg/L)

Nurseries

azalea

cottoneaster

red pine

rose

sugar maple

viburnum

white pine

apple

forsythia

linden

Norway maple

red maple

black locust

boxwood

beet

red oak

white ash

white oak

arborvitae

juniper

Russian olive

Truck Gardening

begonia

blueberry

carrot

green bean

onion

pea radish

raspberry

strawberry

cabbage

celery

cucumber

grape

lettuce

pepper

potato

snapdragon

sweet corn

broccoli

chrysanthemum

geranium

marigold

muskmelon

spinach

squash

tomato

zinnia

asparagus

Swiss chard

Golf Courses

creeping bentgrass

Kentucky bluegrass

perennial ryegrass

red fescue

nugget Kentucky

bluegrass

seaside creeping

bentgrass

alkaline grass

* Source: Rosen et al “Soil Test Interpretations and Fertilizer Management for Lawns, Turf Gardens, and Landscape Plants”

According to this list, there are several trees and shrubs that are described as “non-tolerant” with

plant damage expected at TDS concentrations of 0 to 1,400 mg/L. All other listed trees and shrubs

are tolerant of salinity levels over 1,400 mg/L. The list also shows that all grasses are tolerant of

salinity levels of over 1,400 mg/L.

Given the relatively low population in the area and the short growing season, there does not appear to

be a major impact on the land resources that will result from the agency’s approval of the requested

variance.

S-44





27

1.1.8.4 Statement of Alternatives to Proposed Operation which have been Considered

4. A statement of the alternatives to the proposed operation under the variance which have

been considered by the applicant.

The discharge at SD026 is not associated with a proposed or current operation; rather it is an existing

discharge of groundwater seepage and stormwater runoff. The continued occurrence of groundwater

seepage and stormwater runoff at this location is independent of any action by CE. CE would

continue to proceed with the MDNR-approved Closure Plan. Therefore, there are no alternative

operations to consider.

1.1.8.5 Effects from Denial of Variance

5. A concise statement of the effect on the establishment, maintenance, operation, and

expansion of business, commerce, trade, traffic, and other economic factors that may

result from approval and from denial of the requested variance.

Compliance with the water quality standard for the parameters of concern at this time would result in

substantial economic burden to a closed facility. Implementing a successful remedy prior to the re-

issuance of the Permit is not feasible due to the time required to evaluate, test and implement a viable

mitigation and /or treatment technology.

Because the source of the discharge at SD026 is groundwater seepage and stormwater runoff, there

are no process changes that can be made to eliminate the elevated concentrations for the parameters

of concern. Granting a variance during the next permit cycle will allow CE to properly identify, test,

design, and implement an effective mitigation and/or treatment technology without compromising the

environment or public health, safety, and welfare.

As identified in Section 1.1.5 of this document, denial of the variance may jeopardize future

economic growth and employment in Northeastern Minnesota.

1.2 Variance Requirements Relative to Minn. Rule Part 7052.0280 and 7052.0320

In order to receive a variance for a new or expanded discharge in the Lake Superior Basin, relative

requirements in Minn. Rules 7052.0280 and 7052.0320 must be met.

Because a variance is not being requested for a GLI-pollutant, MN Rule 7052.0280 does not apply.

Because a variance is not being requested for any bioaccumulative chemicals of concern (BCC) or

S-44





28

bioaccumulative substances of immediate concern (BSIC), the requirements of MN Rules 7052.0320

are not applicable.

1.3 United States Environmental Protection Agency (EPA) Facility Specific Variance Application

Please refer to Appendix A for the US EPA Facility Specific Standard Variance Data Sheet.

S-44





29

2.0 References

Barr Engineering Company (Barr), 2010a. NPDES Field Studies Plan – SD026. Prepared for Cliffs

Erie, L.L.C. and PolyMet Mining Inc. May 2010.

Barr Engineering Company (Barr), 2010b. Short-Term Mitigation Evaluation and Implementation

Plan for SD026, NPDES/SDS Permit No. MN0042536. Prepared for Cliffs Erie, LLC and

PolyMet Mining Inc. June 2010.

Barr Engineering Company (Barr), 2011a. NPDES Field Studies Report – SD026. Prepared for

Cliffs Erie, L.L.C. and PolyMet Mining Inc. September 2011.

Barr Engineering Company (Barr), 2011b. Permeable Reactive Barrier Bench Test Report – SD033.

Prepared for Cliffs Erie, L.L.C. and PolyMet Mining Inc. September 2011.

Barr Engineering Company (Barr), 2011c. Floating Wetland Bench Test Report – SD033. Prepared

for Cliffs Erie, L.L.C. and PolyMet Mining Inc. September 2011.

Barr Engineering Company (Barr), 2012a. Long-Term Mitigation Evaluation and Implementation


PolyMet Mining Inc. April 2012.

Barr Engineering Company (Barr), 2012b. Work Plan for Investigation of Membrane Treatment at

SD026, NPDES/SDS Permit No. MN0042536. Prepared for Cliffs Erie LLC and PolyMet

Mining Inc. September 2012.

Minnesota Pollution Control Agency (MPCA), 2012. RE: April 6, 2010, Cliffs Erie, LLC Consent

Decree, Review of Long Term Plans – SD033 and SD026. July 25, 2012.

Labovitz School of Business and Economics, 2012. NorthMet Economic Impact 2011 Update:

Economic Impact of PolyMet’s NorthMet Project on St. Louis County, Minnesota. January

2012.

U.S. Environmental Protection Agency (US EPA), 1991. Technical Support Document for Water

Quality-Based Toxic Control. EPA/505/2-90-001. March 1991.

S-44

!.

!. Existing Surface Discharges

Rivers and Streams

DNR Mine Features (2009)

Stockpile

In-Pit Stockpile

Mine Pit

Tailings Basin

2010 FSA Aerial PhotoBa

rr F

oo

ter:

Arc

GIS

10

.0,

20

12-0

3-0

5 1

1:0

1:0

4.6

23

000

File:

I:\P

roje

cts

\23

\69

\10

72

\Ma

ps\R

ep

ort

s\S

ho

rt_

Term

_M

itig

atio

n_

Eva

lua

tio

n_S

D0

26

\NP

DE

S_P

erm

ittin

g\F

igu

re 1

Gen

era

l S

ite

La

yo

ut.

mxd U

ser:

JJL2

Figure 1GENERAL SITE LAYOUT

SD026Cliffs Erie, LLC

I2,000 0 2,0001,000

Feet

S-44

�0

100

200

300

400

500

600

700

800

SD026�TDS

TDS�(m

g/L)

Other

Sodium

Calcium

Magnesium

Sulfate

Alkalinity

Class�4A�TDS�WQS

(700�mg/L)


�

2

S-44

0

100

200

300

400

500

600

700

800

900

1000

Bic

arb

on

ate

s (

mg

/L)

Figure 3 SD026 Water Quality Data: Bicarbonates

Water Quality Standard = 250 mg/L

S-44

0

100

200

300

400

500

600

700

800

900

1000

Hard

ness,

To

tal (m

g/L

)Figure 4 SD026 Water Quality Data: Hardness, Total


S-44

0

100

200

300

400

500

600

700

800

900

1000

1100

1200

1300

1400

1500

Sp

eci

fic

Co

nd

uct

an

ce (

µm

ho

s/cm

)Figure 5 Water Quality Data: Specific Conductance

Water Quality Standard = 1,000 umhos/cm

S-44

0

100

200

300

400

500

600

700

800

900

1000

TD

S (

mg

/L)

Figure 6 SD026 Water Quality Data: Total Dissolved Solids


S-44

Appendix A

EPA Facility Specific Standard Variance Data Sheet

S-44

Facility Specific Standard Variance Data Sheet

Directions: Please complete this form electronically. Record information in the space provided. Select checkboxes by

double clicking on them. Do not delete or alter any fields. For citations, include page number and section if applicable.

Please ensure that all data requested are included and as complete as possible. Attach additional sheets if needed.

Section I: General Information

Name of Permittee: Cliffs Erie LLC

Facility Name: Cliffs Erie Hoyt Lakes Mining Area

Submitted by: Craig Hartmann, Area Manager - Facilities

State: Minnesota Substance:

Alkalinity bicarbonate as CaCO3,

total hardness, total dissolved solids

(TDS) and specific conductance

Date completed: 04-02-2012

Permit #: MN0042536 WQSTS #: SD026

Duration of Variance Start Date: Permit reissuance date End Date: Duration of the permit (no less than

5 years

Is this permit a: First time submittal for variance. Renewal of a previous submittal for variance. (Complete Section IX)

Description of proposed variance: A variance from the water quality standards for Alkalinity bicarbonate as CaCO3, total

hardness, total dissolved solids and specific conductance is necessary to provide the time required to investigate, test and

implement a technically and economically feasible method for permanent mitigation of these parameters.

List names of all who assisted in the compilation of data for this form, including the completion date of their contribution:

Cliffs Erie LLC and Barr Engineering - April 2, 2012

Section II: Criteria and Variance Information

Water Quality Standard from which variance is sought: Total Hardness – 500 mg/L [Class 3C - industrial cooling and materials transport];

Bicarbonates – 5 meq/L (250 mg/L as CaCO3), Specific Conductance – 1000

µmhos/cm; TDS – 700 mg/L [Class 4A-irrigation]

Ambient substance concentration: See below Measured Estimated Default Unknown

If measured or estimated, what was the basis? Include citation. The discharge occurs at the headwaters of Second Creek.

Therefore, the ambient water quality of Second Creek at the point of the discharge is equivalent to the water quality of the

discharge.

Average effluent discharge rate: 0.4MGD Maximum effluent discharge rate: 0.9MGD

Effluent substance concentration: See Minnesota

Variance Application

Table 1

Measured Estimated Default Unknown

If measured or estimated, what was the basis? Include citation. Average effluent concentrations were calculated using

historical water quality monitoring data from the period of January 2005 through December 2011. See the Minnesota variance

application.

Level currently achievable (LCA):

Total Hardness – 955 mg/L *

Alk. Bicarb. as CaCO3 – 863 mg/L *

Spec. Conductance 1,639 µmhos/cm*

TDS – 1,046 mg/L* *Daily Max and

Monthly Average effluent concentrations

Variance Limit: To be determined.

Target value(s): Water quality standards listed above.

What data were used to calculate the LCA, and how was the LCA derived? Immediate compliance with LCA is required.

The LCAs are based on a reasonable potential to exceed analysis using available monitoring data from January 2005 through

December 2011 with a 99-percent confidence interval.

S-44

Explain the basis used to determine the variance limit (which must be LCA). Include citation. An RPE calculation was

the basis for the proposed LCA.

Select all applicable factors applicable as the basis for the variance as

provided for by 40 CFR 131.10(g). Summarize justification below: 1 2 3 4 5 6

See Minnesota variance request.

Section III: Location Information

Counties in which water quality is potentially impacted: St. Louis County, Minnesota

Receiving waterbody at discharge point: Second Creek (headwaters)

Flows into what stream / river? Partridge River How many miles downstream? 10.1

Coordinates of discharge point (UTM

or Latitude and Longitude): UMT Northing 5271625, Easting 565772, Zone 15N, Datum NAD 83

What are the designated uses associated with this waterbody? Minnesota Class 2B, 3C, 4A, 4B, 5, 6 receiving water (Second

Mine Creek)

What is the distance from the point of discharge to the point downstream where the concentration of the substance falls to

less than or equal to the chronic criterion of the substance for aquatic life protection? The discharge at SD026 currently

meets all chronic criteria applicable to Class 2B waters.

Provide the equation used to calculate that distance (include definitions of all variables and identify the values used for the

clarification, and include citation): Not applicable.

Identify all other variance permittees for the same substance which discharge to the same stream, river, or waterbody in a

location where the effects of the combined variances would have an additive effect on the waterbody:

Mesabi Nugget Delaware, LLC has applied for a water quality standards variance for the identical parameters at NPDES/SDS

permit MN0067687 outfall SD001 which also discharges to Second Creek at a location that is approximately 2.1 miles

downstream of SD026.

Please attach a map, photographs, or a simple schematic showing the location of the discharge point as well as all variances

for the substance currently draining to this waterbody on a separate sheet.

Is receiving waterbody on CWA 303 (d) list? If yes, please list the impairments below. Yes No Unknown

Section IV: Public Notice

Has a public notice been given for this proposed variance? Yes No

If yes, was a public hearing held as well? Yes No

What type of notice was given? Notice of variance included in notice for permit. Separate notice of variance.

Date of public notice: MPCA public notice process will be

followed Date of hearing:

Were comments received from the public in regards to this notice or hearing? Yes No

S-44

If yes, where can these comments be found?

Section V: Human Health

Is receiving water designated as a Public Water Supply? Yes No

Applicable criteria affected by variance: .

Identify any expected impacts that the variance may have upon human health, and include any citations:

Not applicable.

Section VI: Aquatic Life and Environmental Impact

Aquatic life use designation of receiving water:

Minnesota Class 2 aquatic life and recreation use designations apply to

receiving water (Class 2B applies at the discharge point per MN Rules

7050.0222, subp. 2)

Applicable criteria affected by variance: Not Applicable

Identify any environmental impacts to aquatic life expected to occur with this variance, and include any citations:

No environmental impacts are expected – see Minnesota Variance Application.

List any Endangered or Threatened species known or likely to occur within the affected area, and include any citations:

See the attached table which provides the threatened or endangered species within 5 miles of the discharge point (state or federal

listed) and approximate distance from the discharge point.

Section VII: Economic Impact and Feasibility

What modifications would be needed to comply with current limits? Include any citations.

Investigation of technically and economically feasible methods for permanent mitigation of the parameters of concern is required

to determine the modifications required to comply with water quality standards.

How long would it take to implement these changes? 5+ years

Estimate the capital cost: Dependent on mitigation or treatment alternative selected to reduce loadings.

Estimate additional O & M cost: Dependent on mitigation or treatment alternative selected to reduce loadings.

Citations: Long Term Mitigation Evaluation Plan submitted to MPCA

Estimate the impact of treatment on the effluent substance concentration, and include any citations:

Investigation of technically and economically feasible methods for permanent mitigation of the parameters of concern will include

consideration of the resulting effluent concentrations for the parameters of concern.

Identify any expected environmental impacts that would result from further treatment, and include any citations:


consideration of the expected environmental impacts. Alternatives are being evaluated (See Long Term Mitigation Evaluation

Plan submitted to the MPCA)

Is it technically and economically feasible for this permittee to modify the treatment

process to reduce the level of the substance in the discharge? Yes No Unknown

S-44

Provide the basis for this conclusion, including citations. If treatment is technically infeasible, provide an analysis

of the factors that demonstrates technical infeasibility. If treatment is economically infeasible, provide an analysis

of the economic cost to ratepayers that demonstrates economic infeasibility. Attach additional sheets if necessary.

Details regarding technical and economical feasibility can be found in the Minnesota Variance Application.

If treatment is possible, is it possible to comply with the limits on the substance? Yes No Unknown

If it is, what prevents this from being done? Include any citations.

List any alternatives to current practices that have been considered, and why they have been rejected as a course of action,

including any citations:

The details of these activities are provided in the Minnesota Variance Application.

Section VIII: Compliance with Water Quality Standards

Describe all activities that have been, and are being, conducted to reduce the discharge of the substance into the receiving

stream. This may include existing treatments and controls, consumer education, promising centralized or remote

treatment technologies, planned research, etc. Include any citations.

As part of short-term mitigation that was conducted as required by the Consent Decree, a seepage collection and pump-back

system upstream of SD026 was constructed and placed into operation during the summer of 2011. This system significantly

decreases the discharge at SD026 by collecting groundwater seepage from the existing pond upstream of SD026 and pumping it to

Cell 1E of the Hoyt Lakes Tailings Basin. This short-term mitigation seepage collection and pump-back system will remain in

operation during the period of the proposed variance. Further details of these activities are provided in the Minnesota Variance

Application.

Describe all actions that the permit requires the permittee to complete during the variance period to ensure reasonable

progress towards attainment of the water quality standard. Include any citations. There are no current permit requirements

regarding the attainment of the water quality standards for which a variance is sought. Cliffs Erie LLC has proposed a long term

mitigation plan to investigate technically and economically feasible methods for permanent mitigation of the parameters of

concern. The details of these activities can be found in the Minnesota Variance Application.

Section IX: Compliance with Previous Permit (Renewals Only)

Date of previous submittal:

NA – first time EPA

application Date of EPA approval: NA – first time EPA application

S-44

Previous Permit #: MN0042536 Previous WQSTS #: NA – first time EPA application

Effluent substance concentration: Varies – see Minnesota variance

request. Variance Limit: NA – first time MPCA variance

Target value(s): Applicable water quality standards – see above Achieved? Yes No Partial

For renewals, list previous steps that were to be completed. Show whether these steps have been completed in compliance

with the terms of the previous variance permit. Attach additional sheets if necessary.

Condition of previous variance Compliance

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Citations:

S-44

Summary of Endangered or Threatened Species Within 5 Miles of SD026

Common Name Scientific Name MN Status Federal Status

NHIS Records within 1

Mile

NHIS Records

within 1-2 Miles

NHIS Records

within 2-5 Miles

American Bittern Botaurus lentiginosus Tracked* N/A 0 0 1 Colonial Water Bird Nesting Site N/A N/A N/A 0 0 1

Northern Goshawk Accipiter gentilis Tracked* N/A 0 0 1

Lapland Buttercup Ranunculus lapponicus

Species of Special

Concern N/A 0 0 1

* Note: Species is tracked but not legally protected

S-44

Appendix B

EPA Interim Economic Guidance Workbook

S-44

0.0 MGD

0.0 MGD

(see previous)

(see previous)

Please describe the other pollution control options considered, explaining why each options was rejected.

As described in this Variance Application for SD026, CE has been actively pursuing alternatives to meet the

water quality standards, including completion of several studies focused on the identification and evaluation of

viable mitigation and/or treatment technologies and has developed a process to identify the most appropriate

alternative. However, additional time is required to test, evaluate and implement a viable solution. Therefore, the

type of pollution control system that will be implemented at SD026 is yet to be determined.

(Please refer to Section 1.1.6 Technological Feasibility of the Variance Application for further details)

Worksheet A

Pollution Control Project Summary Information

Cliffs Erie, LLC

Please refer to Section 1.1.6 Technological Feasibility and Appendix C of the Variance Application for further

details related to the pollution control options both currently under consideration and that have been eliminated

from consideration.

Current Capacity of the Pollution Control System

0.0%

TBD

TBD

Current Excess Capacity

Expected Excess Capacity after Completion of Project

Projected Groundbreaking Date

Projected Date of Completion

Please describe the pollution control project being proposed below.

TBD

There is not currently a pollution control system installed at SD026. This

variance is necessary to provide the time required to investigate, test and

implement a technically and economically feasible method for permanent


Design Capacity of the Pollution Control System

S-44

$6,900,000 (1)

3.5% (i)

10 (n)

0.1202 (2)

$829,665 (3)

$270,000 (4)

$1,100,000 (5)

Component Section Page

Verify Project Costs 3.1.a 3-2

Capital Cost to be Financed 3.1.a; 3.1.b 3-2; 3-3

Annual Cost of Operation and Maintenance 3.1.b 3-3

Interest Rate for Financing 3.1.b 3-3Time Period for Financing 3.1.b 3-3

Cliffs Erie, LLC

Calculation of Total Annualized Project Costs

Worksheet G

Annual cost of operation and maintenance (including but not limited

to monitoring, inspection, permitting fees, waste disposal charges,

repair, administration and replacement) ($)2,3

Total annual cost of pollution control project [(3) + (4)]

Guidance Documentation

Capital costs to be financed ($)3

Notes:1 While actual payback schedules may differ across projects and companies, assume equal annual payments over a 10-year period for

consistency in comparing projects.

Interest rate for financing (%)

Time period of financing (Assume 10 years1)

Annualization factor = i/([(1 + i)n - 1] + i)

Annualized capital cost [(1) × (2)]

2 For recurring costs that occur less frequently than once a year, pro rate the cost over the relevant number of years (e.g., for pumps

replaced once every three years, include one-third of the cost each year).3 These costs assume treatment by lime softening as a representative of the cost of potential pollution control systems. Please

note that this does not indicate that lime softening is a viable, effective, or appropriate treatment technology for SD026;

additional time is required to test, evaluate and implement a viable solution at SD026.

S-44

Applicant Name

Three most recently completed fiscal years (most recent first): 2011 2010 2009

Revenues ($) $0 $0 $0

Cost of Goods Sold (including the cost of materials, direct labor, indirect labor,

rent and heat) ($)$0 $0 $0

Portion of Corporate Overhead Assigned to the Discharger (selling, general,

administrative, interest, R&D expenses, and depreciation on common

property) ($)

-$14,157,808 $3,994,792 $1,490,769

Net Income after Taxes ($)* $14,157,808 -$3,994,792 -$1,490,769

Depreciation ($) $0 $0 $0

Current Assets (the sum of inventories, prepaid expenses, and accounts

receivable) ($)$25,272,774 $3,983,776 $3,647,055

Current Liabilities (the sum of accounts payable, accrued expenses, taxes,

and the current portion of long-term debt) ($)$1,139,288 $3,660,827 $1,896,962

Current Debt ($) $0 $0 $0

Long-term Debt ($) $0 $0 $0

Long-term Liabilities (long-term debt such as bonds, debentures, and bank

debt, and all other noncurrent liabilities such as deferred income taxes) ($)*$15,724,177 $14,986,879 $13,444,532

Owner Equity (the difference between total assets and total liabilities,

including contributed or paid in capital and retained earnings) ($)*$12,157,638 $8,080,317 $16,287,671


Financial Impact Analysis (overview) 3.2 3-3

Current Assets 3.2b 3-7Current Liabilities 3.2b 3-8


Data Needed to Calculate the Primary and Secondary Indicators (for Worksheets H, I, J, K, & L)

Cliffs Erie, LLC

Cliffs Erie, LLC

Note:

* 2011 was an atypical year. 2011 results include the final financial settlements of significant asset sales, which was a one time ballon

payment. 2009-2010 are more representative of a typical year; however, they also include an income stream that no longer exists following

the final financial settlements of the asset sales in 2011.

S-44

EBT =

R =

CGS =

CO =

2009

R $0 (1)

CGS $0 (2)

CO $1,490,769 (3)

EBT [(1) - (2) - (3)] -$1,490,769 (4)

Earnings Before Taxes

Revenues

Cost of Goods Sold (including the cost of materials, direct labor, indirect labor, rent and

heat)


administrative, interest, R&D expenses, and depreciation of common property)

2011

$0

$0

-$14,157,808

$14,157,808

Worksheet H

Calculation of Earnings Before Taxes With and Without Pollution Control Project Costs

Cliffs Erie, LLC

A. Earnings Without Pollution Control Project Costs

EBT = R - CGS - CO

Considerations: Have Earnings Before Taxes changed over the three year period? If so, what would a "typical" year's

EBT be? Explain below.

$3,994,792

-$3,994,792

2010

2011 was an atypical year. 2011 results include the final financial settlements of significant asset sales, which was a one

time ballon payment. 2009-2010 are more representative of a typical year; however, they also include an income stream

that no longer exists following the final financial settlements of the asset sales in 2011. This income stream was

approximately $3.0 million annual in 2010 and $1.5 million annual in 2009, and was related to the asset sales that were

concluded in 2011. With the financial impact of these asset sales removed, Earnings Before Taxes (EBT) for each of the

years would be approximately: 2011: -$2.3 million (loss), 2010: -$7.0 million (loss), 2009: -$3.0 million (loss).

Three Most Recently Completed Fiscal Years

Where:

$0

$0

S-44

EWPR =

EBT =

ACPR =

(5)

(6)

(7)

No

ComponentProfitability 3-6


2011

$14,157,808

3.2.a

Section

Additional comments:

Earnings will not be positive when comments in (A) above are considered.

Page

EBT (4)

ACPR [Worksheet G, (5)]

EWPR [(5) - (6)]

Considerations: Will earnings be positive after paying the annual cost of pollution control?

$1,100,000

$13,057,808

The Most Recently

Completed Fiscal

Year

Where:

B. Earnings with Pollution Control Project Costs

EWPR = EBT - ACPR

(Worksheet H cont.)

Earnings with Pollution Control Project Costs

Earnings Before Taxes (4)

Total Annual Costs of Pollution Control Project [Worksheet G, (5)]

S-44

Where: PRT =

EBT =

R =

2009

EBT [Worksheet H, (4)] -$1,490,769 (1)

R [Worksheet H, (1)] $0 (2)

PRT [(1) / (2)] 0.00 (3)

Not applicable. Cliffs Erie LLC is a non-operating entity.

No, use 2010. It is more representative of a 'typical' year.Is the most recent year typical of the three years?

How do these profit rates compare with the profit rates for this line of business?

2011


2010

PRT = EBT ÷ R

Profit Rate Before Taxes


Revenues

Considerations: How have profit rates changed over the three years?

Please Note: 2011 was an atypical year. 2011 results include the final financial settlements of significant asset sales, which was a

one time ballon payment. 2009-2010 are more representative of a typical year; however, they also include an income stream that no

longer exists following the final financial settlements of the asset sales in 2011.

Cliffs Erie LLC is a non-operating mining entity. The only significant income stream for Cliffs Erie LLC in the past has

come from the sale of its assets. Once the assets of value have all been sold, much of which has already happened by

2011, Cliffs Erie will stop generating any income at all.

$0

0.00

Worksheet I

Calculation of Profit Rates With and Without Pollution Control Project Costs

Cliffs Erie, LLC

-$3,994,792$14,157,808

A. Profit Rate Without Project Costs

$0

0.00

S-44

PRPR =

EWPR =

R =

EWPR [Worksheet H, (7)] (4)

R [Worksheet H, (1)] (5)

PRPR [(4) / (5)] (6)

0%

Page

3-2

3-6

3-6

3-6

3-6

3-6

3-7

Before-Tax Earnings With Pollution Control Costs

Revenues

Effect of Pollution Control on Profit

Potential to Raise Prices

Considerations:

What would be the percentage change in the profit rate for the most recent year due to pollution control costs? [(PRPR -

How does the Profit Rate with Pollution Control Costs compare to the profit rate of this line of business?

3.2.a

3.2.a

3.2.aEarnings Before Taxes



2011

$13,057,808

$0

0.00

The Most Recently

Completed Fiscal Year

Where:

B. Profit Rate With Pollution Control Costs

PRPR = EWPR ÷ R

Profit Rate with Pollution Control Costs

Is there ability to raise prices to cover some or all of the pollution control costs? Explain below:

(Worksheet I cont.)

3.2.a

3.2.a

Comparison to Similar Line of Business

Interpretation of Profit Test


Section

3.1b

3.2.a

Component

Revenues

Profitability (overview)

S-44

CR =

CA =

CL =

2010

CA $3,983,776 (1)

CL $3,660,827 (2)

CR [(1) / (2)] 1.09 (3)

No

Section

3.2.b

3.2.b

3.2b

3.2b

3.2.b

3.2.b

No, use 2010. It is more representative of a 'typical'

year's ratio.*

Considerations:

Is the current ratio (3) greater than 2.0?

How does the current ratio (3) compare with the current ratios for other firms in this line of

business?


Is the most recent year typical of

the three years?

*Please Note: 2011 was an atypical year. 2011 results include the final financial settlements of

significant asset sales, which was a one time ballon payment. 2009-2010 are more representative

of a typical year; however, they also include an income stream that no longer exists following the

final financial settlements of the asset sales in 2011.

$1,896,962

1.92

2009

$3,647,055

$1,139,288

3-8

3-9


Liquidity (overview)

Current Ratio

Current Assets

Current Liabilities

Interpretation of Current Ratio

Comparison to Similar Lines of Business

Component Page

3-7

3-7

3-7

3-8

Worksheet J

Calculation of the Current Ratio

Cliffs Erie, LLC

22.18

CR = CA ÷ CL

Where: Current Ratio

Current Assets (the sum of inventories, prepaid expenses, and

accounts receivable)

Current Liabilities (the sum of accounts payable, accrued

expenses, taxes, and the current portion of long-term debts)

2011

$25,272,774


S-44

BR =

CF =

TD =

2009

Net income after taxes -$1,490,769 (1)

Depreciation $0 (2)

CF [(1) + (2)] -$1,490,769 (3)

Current debt $0 (4)

Long-term debt $0 (5)

TD [(4) + (5)] $0 (6)

BR [(3) / (6)] 0.00 (7)

No

Yes

No

Section Page

3.2.b 3-9

3.2.b 3-9

3.2.b 3-10

3.2.b 3-10

Interpretation of Beaver's Ratio


2011

$14,157,808

$0

$14,157,808

$0

$0

0.00

$0

$0

$0

0.00

Component

Solvency (overview)

Beaver's Ratio

Worksheet K

Calculation of Beaver's Ratio

Cliffs Erie, LLC


2010

How does this ratio compare with the Beaver's Ratio for other firms in the same business?


-$3,994,792

$0

Total Debt

No, use 2010. It is more representative of a

'typical' year's ratio.*

Is the most recent year typical of the

three years?


significant asset sales, which was a one time ballon payment. 2009-2010 are more representative of

a typical year; however, they also include an income stream that no longer exists following the final

financial settlements of the asset sales in 2011.


Is the Beaver's Ratio greater than 0.2?

Is the Beaver's Ratio less than 0.15?

BR = CF ÷ TD

Where: Beaver's Ratio

Cash Flow

Is the Beaver's Ratio between 0.2 and 0.15?

Considerations:

-$3,994,792

$0

S-44

DER =

LTL =

OE =

2010 2009

LTL $14,986,879 $13,444,532 (1)

OE $8,080,317 $16,287,671 (2)

DER [(1) / (2)] 1.85 0.83 (3)

Section

3.2b

3.2b

3.2b

3.2.b

3.2.b

3.2.bImpact of Special Sources of Funding


2011

$15,724,177

$12,157,638

1.29

3-10

3-11

3-11

3-11

Component

Leverage (overview)

Debt/Equity Ratio

Owner Equity

Interpretation of Debt/Equity Ratio

Comparison to Similar Dischargers

Worksheet L

Debt to Equity Ratio

Cliffs Erie, LLC


Page

3-10

3-10

How does the debt to equity ratio (3) compare with the ratio for firms in the same business?


DER = LTL ÷ OE


significant asset sales, which was a one time ballon payment. 2009-2010 are more representative of a

typical year; however, they also include an income stream that no longer exists following the final


Considerations:

Where: Debt/Equity RatioLong-Term Liabilities (long-term debt such as bonds, debentures,

and bank debt, and all other noncurrent liabilities such as deferred

income taxes)Owner Equity (the difference between total assets and total liabilities,


the three years?

No, use 2010. It is more representative of a 'typical' year's

ratio.*

S-44

EntityAnnual Pollution

Control Costs

Most Recently

Completed Fiscal

Year

Profit Rate

Without Pollution

Controls

Profit Rate With

Pollution Controls

Percent Change in

Profit Rate Due to

Pollution Controls

Cliffs Erie, LLC $1,100,000 2011 0.00 0.00 0.0%

Current Ratio

(Liquidity)

Beaver's Ratio

(Solvency)

Debt/Equity Ratio

(Leverage)

0.00 1.09 0.00 1.85

Section Page

3.2 3-3

3.2.a 3-6

3.2.b 3-7

3.3 3-11

Figure 3-1 3-13

Primary Measure:

Profit Test

(Profitability)

Secondary Measures

Cliffs Erie, LLC

Typical Value for Facilities/Firms in

Similar Lines of Business


Primary Measure: Profit Test1

Note: 1. Based on the most recently completed fiscal year (2011)

Interpreting the Results

Measuring Substantial Impacts (flowchart)

Cliffs Erie, LLC


Component

Financial Impact Analysis (overview)

Primary Measure (profitability)

Secondary Measures

Note: 2. Based on a typical fiscal year (2010)

Summarize and discuss financial circumstances with and without pollution controls, and compare primary and secondary

measures with the corresponding typical values for facilities/firms in similar lines of business.


Comparison with Typical Values for Facilities/Firms in Similar Line of Business2

Entity

S-44

Cliff Erie's Hoyt Lakes Mine Area is located

north of the City of Hoyt Lakes in Sections 1,

2, 11-16, and 21-28 of Township 59 North,

Range 14W, Saint Louis County, Minnesota.

Employees, contractors and suppliers live in

the nearby community as well as other

communities on the Iron Range, including

Aurora, Biwabik, Gilbert, McKinley, Eveleth,

and Virginia, and in unincorporated areas of

St. Louis County.

(1)

Refer to Table N-1 (2)

7.9%* (3)

Less than 10 (4)

(5)





(10)


Total number of households in affected

community (#)

Percent of population below the poverty line in

affected community (%)

Current expenditures on social services in

affected community ($)

Expected expenditures on social services due

to job losses in the affected community ($)

Current total tax revenues in the affected

community ($)

Median household income in affected

community ($)

Worksheet N

Factors to Consider in Making a Determination of Widespread Social and Economic

Impacts

Cliffs Erie, LLC

Define the affected community in this case;

what areas are included

Current unemployment rate in affected

community ([Current # of persons collecting

unemployment in affected community / labor

force in affected community], or, if unavailable,

current unemployment rate provided in Tab 9.)

(%)

Current national unemployment rate (%)

Additional number of persons expected to

collect unemployment in affected community

due to compliance with water quality standards

(#)

Expected unemployment rate in the affected

community after compliance with water quality

standards ([Current # of persons collecting

unemployment in affected community + (4)] /

labor force in affected community) (%)

S-44

(12)

(13)

5.8%* (14)

(15)

(16)

$8,312,488,593** (17)

(18)


Affected Community 4.1 4-1

Unemployment Rates 4.3 4-3

Labor Force 4.3 4-3

Expenditures on Social Services 4.3 4-4

Tax Revenues 4.3 4-3

Multiplier Effect 4.4 4-5

Consideration of Economic Benefits of Clean Water4.5 4-6

Other current community characteristics or anticipated impacts that are not listed in the worksheet:


** 2005 Human Services Enrollment and Services Spending

(http://www.auditor.leg.state.mn.us/ped/pedrep/hsa.pdf; accessed December 3, 2012)

Notes:* Bureau of Labor Statistics seasonally adjusted value for October 2012 (http://data.bls.gov, accessed

December 3, 2012)

Expected statewide expenditures on social

services due to job losses ($)

Tax revenues paid by the private entity to the


(Worksheet N cont.)

Tax revenues paid by the private entity as a

percentage of the affected community's total

tax revenues (%) *

Current statewide unemployment rate

([Current # of persons collecting

unemployment in state] / labor force in state],

or, if unavailable, current statewide

unemployment rate provided in Tab 9.) (%)


collect unemployment in the state due to

compliance with water quality standards (#)

Expected statewide unemployment rate, after

compliance with water quality standards


unemployment in state + (15)]/labor force in

state)


state ($)

S-44

Table N-1: Unemployment rate in affected community

Impact area Unemployment

Rate (%) Source

Aurora N/A

Biwabik 4.4 U.S. Census American Factfinder 2010 ACS 5-yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Eveleth 11.9 U.S. Census American Factfinder 2010 ACS 5-yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Gilbert 7.6 U.S. Census American Factfinder 2010 ACS 5-yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Hoyt Lakes 16.3 U.S. Census American Factfinder 2010 ACS 5-yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

McKinley 15 U.S. Census American Factfinder 2010 ACS 5-yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Town of White N/A

Virginia 10.5 U.S. Census American Factfinder 2010 ACS 5-yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

St. Louis County

6.5 Bureau of Labor Statistics not seasonally adjusted preliminary value for December 2011 (http://data.bls.gov, accessed February 27, 2012)

Minnesota Total

5.7 Bureau of Labor Statistics seasonally adjusted value for December 2012 (http://data.bls.gov, accessed February 27, 2011)

S-44

Table N-2: Median household income in affected community

Impact area

Median Household

Income (2010

Inflation Adjusted Dollars)

Year/Source

Aurora N/A

Biwabik $ 37,500 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Eveleth $ 36,755 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Gilbert $ 40,925 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Hoyt Lakes $ 45,338 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

McKinley $ 27,750 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Town of White N/A

Virginia $ 32,664 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

St. Louis County $ 44,941 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Minnesota Total $ 55,459 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

S-44

Table N-3: Number of households in affected community

Impact area Number of households

Year/Source

Aurora

Biwabik 523 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Eveleth 1,779 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Gilbert 861 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Hoyt Lakes 912 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

McKinley 27 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Town of White

Virginia 4,028 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

St. Louis County 86,561 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Minnesota Total 2,091,548 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

S-44

Table N-4: Percent of population living below poverty level in affected community

Impact area

Percent below poverty level (%)

Year/Source

Aurora

Biwabik 18.7 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Eveleth 18.8 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Gilbert 11.0 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Hoyt Lakes 4.5 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

McKinley 15.9 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Town of White

Virginia 21.2 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

St. Louis County 17.9 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Minnesota Total 11.6 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

S-44

Table N-5: Expenditures on social services in affected community

Impact area Social Services Expenditures

Year/Source

Aurora $ 1,414,513

STATE OFMINNESOTA Office of the State Auditor, Minnesota City Finances 2009 Revenues, Expenditures, and Debt Table 16 "Classification of Expenditures for All Governmental Funds For the Year Ended December 31, 2009", data for current expenditures (http://www.osa.state.mn.us/reports/gid/2009/ciRed/ciRed_09_Report.pdf, accessed February 27, 2012)

Biwabik $ 1,201,311


Eveleth $ 4,134,077


Gilbert $ 2,087,466


Hoyt Lakes $ 2,620,085


McKinley $ 55,428


Town of White

Virginia $ 9,830,928


St. Louis County $ 217,734,620

STATE OFMINNESOTA Office of the State Auditor, Minnesota County Budgets 2010 Summary Budget Data Together With 2009 Revised Summary Budget Data, 2009 revised budget data for current expenditures, (http://www.osa.state.mn.us/Reports/gid/2010/co_Budget/coBudget_10_report.pdf, accessed February 27, 2012)

Minnesota Total $ 8,312,488,593 2005 Human services enrollment and services spending(http://www.auditor.leg.state.mn.us/ped/pedrep/hsa.pdf, accessed February 27, 2012)

S-44

Table N-6: Current total tax revenues in affected community

Impact area 2009 U.S. Dollars Year/Source

Aurora $ 665,617

STATE OFMINNESOTA Office of the State Auditor, Minnesota City Finances 2009 Revenues, Expenditures, and Debt Table 15 "Classification of Revenues for All Governmental Funds For the Year Ended December 31, 2009" (http://www.osa.state.mn.us/reports/gid/2009/ciRed/ciRed_09_Report.pdf, accessed February 27, 2012)

Biwabik $ 653,040


Eveleth $ 871,281


Gilbert $ 557,802


Hoyt Lakes $ 939,945


McKinley $ 2,242


Town of White N/A




STATE OFMINNESOTA Office of the State Auditor, Minnesota County Budgets 2010 Summary Budget Data Together With 2009 Revised Summary Budget Data, 2009 revised budget data for property taxes and all other taxes, (http://www.osa.state.mn.us/Reports/gid/2010/co_Budget/coBudget_10_report.pdf, accessed February 27, 2012)

Minnesota Total $ 17,726,000,000 FY 2011 Estimate (http://www.mmb.state.mn.us/doc/budget/report-pog/nov11.pdf, accessed February 27,2012)

S-44

Appendix C

Summary: Comprehensive Review of Potential Treatment Technologies for SD026

S-44

Appendix C


Through the process of developing the Short-Term Mitigation Evaluation and Implementation Plan for

SD026 (Short-Term Plan) and the Long-Term Mitigation Evaluation and Implementation Plan for SD026

(Long-Term Plan), CE has undertaken a comprehensive review of potential treatment technologies to

achieve compliance with water quality standards for the parameters of concern at SD026.

The following potential treatment technologies were screened in development of the Short-Term

Mitigation Evaluation and Implementation Plan for SD026:

Biological Treatment: constructed wetlands, floating wetlands, natural wetlands, biofilters, in-pit

biological treatment, and anaerobic reactors

Chemical Precipitation: barium precipitation, ettringite precipitation (SAVMIN and CESR),

gypsum precipitation, and lime softening

Ion Exchange: Sulf-IX and Sulf-IXC

Membrane Treatment: microfiltration, ultrafiltration, nanofiltration, reverse osmosis, and

electrodialysis reversal

The following potential treatment technologies were screened in development of the Long-Term


Floating Wetland Treatment

Permeable Reactive Barrier (PRB)

Ion Exchange (Sulf-IX or Sulf-IXC)

Reverse Osmosis

Nanofiltration

Natural Attenuation

Enhanced Natural Attenuation through Nutrient Addition

Aquatic System and Surface Flow Wetlands

Based on the results of these screenings, the following potential treatment technologies were evaluated

further based on effectiveness, implementability, long-term performance, and cost:

Floating Wetland

o Summary of review: After review of potential biological treatment alternatives during

development of the Short-Term Plan, a floating wetland system was selected for

S-44

further evaluation, as described in Section 5.1.1 of the Short-Term Plan. Section 5.2

of the Short-Term Plan includes a description of the floating wetland system, related

implementation considerations, a preliminary cost estimate, and a hypothesis of the

expected outcome of further evaluation. During development of the Long-Term Plan,

the floating wetland system was selected for further evaluation, as described in

Sections 3.1.1 and 4.3 of the Long-Term Plan. Section 5.0 of the Long-Term Plan

includes discussion of the effectiveness, implementability, long-term performance,

and cost of a floating wetland system. Section 6.0 of the Long-Term Plan

recommended further evaluation a floating wetland system.

o Further details related to this review:

Short-Term Mitigation Evaluation and Implementation Plan for SD026 :

Section 5.1.1: Biological Treatment

Section 5.2: Floating Wetlands

Table 2: Treatment Screening Matrix

Long-Term Mitigation Evaluation and Implementation Plan for SD026 :

Section 3.1.1: Floating Wetland Treatment

Section 4.3: Floating Wetland Treatment

Section 5.0: Comparison of Mitigation Alternatives

Section 6.0: Recommended Protocol

Table 3: Effectiveness, Implementation, and Cost Information for

Treatment/Mitigation Alternatives

Lime Softening

o Summary of review: After review of potential chemical precipitation treatment

alternatives during development of the Short-Term Plan, no chemical precipitation

alternative was deemed suitable for independent consideration due to potential

limitations, as described in Section 5.1.2 of the Short-Term Plan. However, lime-

softening was selected for further consideration and potential evaluation with other

treatment technologies as either a pre- or post-treatment option.


Short-Term Mitigation Evaluation and Implementation Plan for SD026:

Section 5.1.2: Chemical Precipitation


S-44




Ion Exchange (Sulf-IX)

o Summary of review: After review of potential ion exchange treatment alternatives

during development of the Short-Term Plan, BioteQ Environmental Technologies,

Inc.’s proprietary Sulf-IX ion exchange process was selected for further evaluation,

as described in Section 5.1.3 of the Short-Term Plan. Section 5.3 of the Short-Term

Plan includes a description of the Sulf-IX ion exchange process, related



the Sulf-IX ion exchange system was not selected for further evaluation due primarily

to concerns related to implementability, as described in Section 3.1.3 of the Long-

Term Plan.



Section 5.1.3: Ion Exchange

Section 5.3: Ion Exchange



Section 3.1.3: Ion-Exchange



Membrane Treatment (Reverse Osmosis)

o Summary of review: After review of potential membrane treatment alternatives

during development of the Short-Term Plan, reverse osmosis was selected for further

evaluation, as described in Section 5.1.4 of the Short-Term Plan. Section 5.4 of the

Short-Term Plan includes a description of reverse osmosis, related implementation

considerations, a preliminary cost estimate, and a hypothesis of the expected outcome

of further evaluation. During development of the Long-Term Plan, reverse osmosis

was not selected for further evaluation due primarily to concerns related to

implementability, as described in Section 3.1.4 of the Long-Term Plan. However, in

the MPCA’s July 25, 2012 letter to CE, “RE: April 6, 2010, Cliffs Erie, LLC Consent

S-44

Decree, Review of Long Term Plans – SD033 and SD026”, the MPCA indicated that,

further evaluation of an active treatment technology, such as membrane treatment,

would be required; therefore a Work Plan for Investigation of Membrane Treatment

at SD026 was submitted to the MPCA in September 2012. The work plan includes a

proposed schedule and protocol for conducting a pilot-scale test including evaluation

of reverse osmosis technology and evaluation of associated concentrate (brine)

management approaches and the use of concentrate volume reduction technologies.



Section 5.1.4: Reverse Osmosis

Section 5.4: Reverse Osmosis


Long-Term Mitigation Evaluation and Implementation Plan for SD026:

Section 3.1.4: Reverse Osmosis and Nanofiltration



Work Plan for Investigation of Membrane Treatment at SD026:

Section 1.2: Selection of Reverse Osmosis as Active Treatment

Technology and Testing Approach

Natural Attenuation

o Summary of review: After review of additional potential mitigation alternatives for

long-term implementation during development of the Long-Term Plan, natural

attenuation was identified for further evaluation, as described in Sections 3.2.1 and

4.1 of the Long-Term Plan. Section 5.0 of the Long-Term Plan includes discussion of

the effectiveness, implementability, long-term performance, and cost of natural

attenuation. Section 6.0 of the Long-Term Plan recommended natural attenuation for

further evaluation; however, based on subsequent correspondence with the MPCA,

natural attenuation was removed from further evaluation.



Section 3.2.1: Natural Attenuation

Section 4.1: Natural Attenuation

S-44



Section 6.1.1: Natural Attenuation Evaluation



Enhanced Natural Attenuation


long-term implementation during development of the Long-Term Plan, enhanced

natural attenuation through nutrient addition was identified for further evaluation, as

described in Sections 3.2.2 and 4.2 of the Long-Term Plan. Section 5.0 of the Long-

Term Plan includes discussion of the effectiveness, implementability, long-term

performance, and cost of enhanced natural attenuation. Section 6.0 of the Long-Term

Plan recommended further evaluation of enhanced natural attenuation through bench-

scale and pilot-scale testing.



Section 3.2.2: Enhanced Natural Attenuation through Nutrient

Addition

Section 4.2: Enhanced Natural Attenuation



Section 6.1.2: Enhanced Natural Attenuation and Lagoon/Surface-

Flow Wetland Studies



Surface-Flow Wetland/Lagoon


long-term implementation during development of the Long-Term Plan, a surface-flow

wetland system was identified for further evaluation, as described in Sections 3.2.3

and 4.4 of the Long-Term Plan. Section 5.0 of the Long-Term Plan includes

discussion of the effectiveness, implementability, long-term performance, and cost of

a surface-flow wetland system. Section 6.0 of the Long-Term Plan recommended for

S-44

further evaluation of a surface-flow wetland system through bench-scale and pilot-

scale testing.



Section 3.2.3: Aquatic System and Surface Flow Wetlands

Section 4.4: Aquatic System and Surface Flow Wetland



Section 6.1.2: Enhanced Natural Attenuation and Lagoon/Surface-

Flow Wetland Studies



S-44



5.0 SD033 Variance Application (Updated)

S-44




S-44



NPDES Reissuance Area 5-Tailings Basin\WorkFiles\NPDES Permitting and Variance\Final Submittal - Mine\Variance SD033\SD033 Variance

Application.docx

i


Variance Application NPDES/SDS Permit Renewal

Permit No. MN0042536

April 2012 Updated: December 10, 2012

Table of Contents

1.0 Variance Application ....................................................................................................... 1

1.1 Minn. Rule Part 7000.7000, Subp. 2 ......................................................................................... 43

1.1.1 Name and Address of the Applicant .............................................................................. 4

1.1.2 Signature of the Applicant ............................................................................................. 4

1.1.3 Description of Facility for which Variance is being Sought ........................................ 54

1.1.4 Nature of the Variance Sought ..................................................................................... 76

1.1.4.1 Parameters for which Variance is Requested ................................................ 76

1.1.4.2 Period of Time for which Variance is Requested .......................................... 87

1.1.4.3 Reasons Relied upon by the Applicant in Requesting the Variance ............. 87

1.1.5 Economic Burden ..................................................................................................... 1110

1.1.6 Technological Feasibility ......................................................................................... 1511

1.1.7 Other Data or Information Required by Rule or Standard ....................................... 2013

1.1.8 Other Relevant Data or Information Required by Agency ...................................... 2013

1.1.8.1 General Description of Materials Discharged, Nature of Materials and

Proposed Methods for Control .................................................................. 2013

1.1.8.2 Proposed Plan to Reduce Emission Levels to Lowest Possible ................ 2114

1.1.8.3 Effect on Air, Water and Land Resources which will Result from Approval

of Variance ................................................................................................ 2215

1.1.8.4 Statement of Alternatives to Proposed Operation which have been

Considered ................................................................................................. 2720

1.1.8.5 Effects from Denial of Variance ............................................................... 2720

1.2 Variance Requirements Relative to Minn. Rule Part 7052.0280 and 7052.0320 ................. 2821

1.3 United States Environmental Protection Agency (EPA)

Facility Specific Variance Application ................................................................................. 2821

2.0 References .................................................................................................................. 2922

S-44




Application.docx

ii

List of Tables


Table 2 Flow Contributions by Source to SD033 .......................................................................... 7

Table 3 Effectiveness, Implementation, and Cost Information for Potential Treatment

Technologies at SD033 .................................................................................................. 13


Table 5 Relative Salt Tolerance of Various Cultivated Plants* ................................................... 26


Table 2 Flow Contributions by Source to SD033 .......................................................................... 6


Table 4 Relative Salt Tolerance of Various Cultivated Plants* 19

List of Figures

Figure 1 General Site Layout SD033


Figure 3 Water Quality Data: Bicarbonate

Figure 4 Water Quality Data: Hardness, Total

Figure 5 Water Quality Data: Specific Conductance

Figure 6 Water Quality Data: Total Dissolved Solids

List of Appendices

Appendix A EPA Facility Specific Standard Variance Data Sheet

Appendix B EPA Interim Economic Guidance – Worksheets:

Worksheet A: Pollution Control Project Summary Information

Worksheet G: Calculation of Total Annualized Project Costs

Data Needed to Calculate the Primary and Secondary Indicators (for Worksheets

H, I, J, K, and L)

Worksheet H: Calculation of Earnings before Taxes with and without Pollution

Control Projects Costs

Worksheet I: Calculation of Profit Rates with and without Pollution Control

Project Costs

Worksheet J: Calculation of the Current Ratio

Worksheet K: Calculation of the Beaver’s Ratio

Worksheet L: Debt to Equity Ratio

S-44




Application.docx

iii


Worksheet N: Factors to Consider in Making a Determination of Widespread

Social and Economic Impacts

Appendix C Summary: Comprehensive Review of Potential Treatment Technologies for SD033

S-44




Application.docx

1

1.0 Variance Application

The northern portion of the former LTV Steel Mining Company (LTVSMC) Mining Area 5

discharges water to the Embarrass River watershed. The discharge is administered under Minnesota

Pollution Control Agency (MPCA) National Pollutant Discharge Elimination System (NPDES)/State

Disposal System (SDS) Permit MN0042536 (Permit). The Permit is currently held by Cliffs Erie

LLC (CE). The current Permit was issued May 4, 2001, expired November 30, 2005, and was last

modified on May 6, 2011. In accordance with Chapter 7.1.68 of the Permit, a complete NPDES

permit application was submitted to the MPCA on February 28, 2005. While there are other

discharges/outfalls authorized under the Permit, this variance application is specific to Outfall

SD033.

Iron mining operations in the Area 5 pits ceased in approximately 1988 and the facility is currently in

closure. The area 5NE pit does not have a surface water discharge, but has substantial subsurface

flow to the Area 5NW pit through the road base between the pits. Discharge from the northern

portion of Area 5NW forms the headwaters of Spring Mine Creek, which flows north (via surface

discharge station SD033) to the Embarrass River. Spring Mine Creek is an unlisted water and as

such, has the default beneficial use classifications of 2B, 3C, 4A, 4B, 5, and 6, as described in

Minnesota Rule Chapter 7050.0430.

The parameters discussed in this variance application are total dissolved solids (TDS), bicarbonates

(alkalinity), total hardness, and specific conductance (parameters of concern). Although monitoring

is required in the current Permit for total dissolved solids (TDS), bicarbonate (alkalinity) and specific

conductance, there are no applicable effluent limits listed for these parameters at this monitoring

station. Monitoring is also required for carbonate hardness (as CaCO3) in the current Permit,

although there is no applicable water quality standard. While monitoring for total hardness (Ca + Mg

as CaCO3) is not required for SD033 under the current Permit, monitoring for this parameter has been

conducted and is elevated relative to the water quality standard. It is important to note that while

there is no monitoring requirement for total hardness in the current Permit (i.e.., only carbonate

hardness monitoring is required in the current Permit), this variance request is intended to address

total hardness.

Table 1 presents a summary of the water quality data for these parameters at SD033 from January

2005 through December 2011 based on the analytical results from the monthly Discharge Monitoring

S-44




Application.docx

2

Reports (DMRs) as reported by CE in accordance with the Permit. The discharge at SD033 has

elevated specific conductance, TDS, bicarbonates (alkalinity) and hardness relative to the water

quality standard. The primary constituents contributing to the elevated specific conductance and

TDS include sulfate, hardness (calcium and magnesium), and bicarbonate.

Table 1 SD033 Parameters of Concern Water Quality Summary (2005 through 2011)

Parameter of Concern Data Availability

Time Period

Average

Concentration

Maximum

Concentration

Water Quality

Standard

Alkalinity, Bicarbonates as

CaCO3 (mg/L)

2005 - 2011 341 398 250

Hardness, Total (mg/L) 2005 - 2011 1,166 1,420 500

Total Dissolved Solids (mg/L) 2008a - 2011 1,800 2,140 700

Specific Conductance

(µmhos/cm) 2005 - 2011 2,178 3,000 1,000

Sulfate (mg/L) 2005 - 2011 1,099 2,520 -- aData are not available for TDS prior to 2008.

CE has been performing studies and implementing a series of corrective actions to mitigate the

elevated concentrations of the parameters of concern as soon as possible. For SD033, these efforts

have included developing and implementing the following:

Short-Term Mitigation Evaluation and Implementation Plan for SD033: The objective of the

Short-Term Mitigation Evaluation and Implementation Plan for SD033 was to investigate

readily available and proven, applicable, technically and economically feasible methods and

technologies to partially or completely mitigate the elevated concentrations of the parameters

of concern in SD033 in the short term. The Short-Term Mitigation Evaluation and

Implementation Plan for SD033 was completed in 2010 (Barr, 2010b).

NPDES Field Studies Plan – SD033 and NPDES Field Studies Report – SD033: The field

studies consisted of a year-long monitoring program. The objectives of the NPDES Field

Studies Plan – SD033 (Barr, 2010a) were to collect data to:

o Determine surface and groundwater flow patterns in the Area 5NE, 5NW Pits and

adjacent stockpiles;

o Determine the likely source or sources of elevated sulfate in SD033;

o Assess the impact of the elevated sulfate in SD033 on wild rice stands and

methylmercury concentration in receiving waters of the discharge;

S-44




Application.docx

3

o Assess the impact of elevated total dissolved solids, carbonate hardness and specific

conductance in SD033 on the water quality and aquatic life (fish and

macroinvertebrates) of receiving waters of the discharge; and

o Collect additional data to support continued evaluation of treatment alternatives.

The field studies were completed in 2011 (Barr, 2011a).

Bench Testing: Bench testing was completed for both a permeable reactive barrier (PRB) and

for a floating wetland. The bench testing results were reported in Permeable Reactive Barrier

Bench Test Report – SD033 (Barr, 2011b) and Floating Wetland Bench Test Report – SD033

(Barr, 2011c).

Long-Term Mitigation Evaluation and Implementation Plan for SD033: The objective of the

Long-Term Mitigation Evaluation and Implementation Plan for SD033 is to investigate

technically and economically feasible methods and technologies for permanent mitigation of

the elevated concentrations of the parameters of concern in SD033 with a focus on source

elimination/minimization and passive treatment. The Long-Term Mitigation Evaluation and

Implementation Plan for SD033 (Barr, 2012a) was completed in April 2012. This plan,

combined with the Short-Term Mitigation Evaluation and Implementation Plan for SD033,

constitutes a comprehensive review of potential treatment technologies to achieve compliance

with water quality standards for the parameters of concern at SD033.

Work Plan for Investigation of Membrane Treatment at SD033: In addition to the Long-Term

Mitigation Evaluation and Implementation Plan for SD033, a Work Plan for Investigation of

Membrane Treatment at SD033 (Barr, 2012b) was submitted to the MPCA in September

2012. This work plan includes a proposed schedule and protocol for conducting a pilot-scale

test of membrane (reverse osmosis) treatment for SD033.

While CE has been pursuing a solution to reduce the concentrations of the parameters of concern,

additional time is required to test, evaluate and implement a viable solution. CE requests a variance

from the water quality standards for TDS, bicarbonates (alkalinity), total hardness, and specific

conductance at SD033 to provide sufficient time to evaluate and implement potential source

mitigation and water treatment strategies to meet water quality standards.

This variance application is submitted in accordance with Minn. Rules Part 7000.7000 subpart 2 and

Minn. Rules part 7053.0280 and 7052.0320.

S-44




Application.docx

4

1.1 Minn. Rule Part 7000.7000, Subp. 2

Minnesota Rules 7000.7000 (Variances) provides in relevant part:

Subp. 2. In no case shall the board or commissioner grant a variance unless a written

application has been made to the board or commissioner. The application must be

served upon the commissioner.

Subsections 1.1.1 through 1.1.8 provide the information required by MN Rules 7000.7000, Subpart 2,

A. through H.

1.1.1 Name and Address of the Applicant

A. Name and address of the applicant and the person who prepared the application.

Applicant

Cliffs Erie LLC

Craig Hartmann, Area Manager – Facilities

P.O. Box 900

Hoyt Lakes, MN 55750-0900

218-225-3127

Person Who Prepared the Application

Barr Engineering Company

4700 West 77th

Street

Minneapolis, MN 55435-4803

1.1.2 Signature of the Applicant

B. The signature of the applicant or authorized representatives.

Craig Hartmann

Area Manager – Facilities

Cliffs Erie LLC

S-44




Application.docx

5

1.1.3 Description of Facility for which Variance is being Sought

C. A description, including the location, of the business, plant, system, or facility for which a

variance is sought.

The CE facility is located primarily in sections 1, 2, 11-16 and 21-28 of T59N, R14W, St. Louis

County, near Hoyt Lakes, Minnesota. Mining operations at LTVSMC (now Cliffs Erie LLC) ceased

in 2001 and the site is currently inactive and some closure activities are underway.

Currently, the facility is covered by an approved Closure Plan which states “The overall objective of

the Closure Plan is to develop the site as a brownfield location for a future mineral

processing/industrial site. Significant taconite reserves remain in the area and it may be possible to

utilize the facilities as a base for construction of a direct steel making operation. In addition, several

Cu/Ni deposits are located to the east of the plant.” One company is proposing reuse of portions of

the facility, which may lead to the development of a Cu/Ni mine and value added metals plant in the

area. In either case, the presence of the facility would also make an excellent heavy industrial site.

The Closure Plan and details have been developed in cooperation with the MDNR, MPCA and other

local governments and agencies as appropriate. The Closure Plan will be available at the MDNR

offices in Hibbing and St. Paul and at the MPCA offices in St. Paul. In general, all environmental

hazards will be remediated, inactive pit areas closed, all buildings and structures not part of the

brownfield development will be demolished, and all associated sites reclaimed and vegetated. The

crushing/concentrating facilities, shops, warehouses, offices, railroad/dock and all utilities at the site

will be left in place as part of the brownfield site. In the absence of brownfield development, these

structures will be demolished and the land reclaimed.

The current principal activity at this facility is the maintenance and closure of an open pit taconite

mine, which is currently inactive. Figure 1 presents a general layout of the site. The facility consists

of mine pits; stockpile areas; haul roads, railways, and railroad yards; plant areas; material and

equipment storage areas; and non-domestic wastewater treatment systems. Surface drainage from the

stockpiles, haul roads, building areas and storage sites at the facility flows to: the mine pits; Wyman

Creek and unnamed creek tributary to Colby Lake and the Partridge River; Second Creek (also

known as Knox Creek); Spring Mine Creek to the Embarrass River; and unnamed wetlands tributary

to these creeks.

S-44




Application.docx

6

While iron mining in the Area 5 pits ceased in approximately 1988, a large volume of water remain

in the Area 5NE and 5NW pits. Flow and water quality at SD033 are influenced by these pits,

surrounding stockpiles, runoff, and shallow groundwater. Gravity drainage from the northern portion

of Area 5NW contributes to culvert Outfall SD033, forming the headwaters of Spring Mine Creek,

which flows north to the Embarrass River. Spring Mine Creek is an unlisted water and as such, has

the default beneficial use classifications of 2B, 3C, 4A, 4B, 5, and 6, as described in Minnesota Rule

Chapter 7050.0430. Based on the flow measurements at SD033 from August 2010 through June

2011, as reported in the NPDES Field Studies Report – SD033 (Barr, 2011a), the discharge rate has

ranged from a low of approximately 160 gallons per minute (gpm) to a high of approximately 1,115

gpm, with an average observed flow of approximately 400 gpm.

The flow of Spring Mine Creek at SD033, unlike many other streams in the area, has a strong

component of “baseflow” or constant, year-round flow. This characteristic is due to the fact that the

majority of the SD033 watershed does not contribute water directly to the stream at SD033 but rather

flows to the Area 5NE and Area 5NW Pits. Outflow from the Area 5NW Pit follows the relic Spring

Mine Creek channel under waste rock stockpiles and surfaces just upstream from SD033. This

subsurface flow into and out of the mine pits is relatively constant and does not stop in the winter,

allowing the channel just downstream of SD033 to remain ice-free year round.

The sources of water that contribute to the SD033 discharge were evaluated as part of the field

studies conducted in 2011. The relative contribution to flow at SD033 from each water source is

shown in Table2. Direct contributions to SD033 that do not pass through the Area 5 pits represent

22% of the total flow, with the remainder split between the watersheds of Area 5NE Pit (45%) and

Area 5NW Pit (33%). The largest source of water (by land-use type) is shallow groundwater from

the stockpiles and haul roads (32% of the total flow at SD033), which has the potential to contribute

loading of parameters of concern to the discharge. Approximately 25% of the total flow at SD033

originates from direct precipitation on the pits or runoff and shallow groundwater from undisturbed

areas, which are expected to be minor sources of loading. The NPDES Field Studies Report – SD033

(Barr, 2011a) determined that the rock stockpiles are the primary source for the sulfate load and

parameters of concern at SD033. Using mean sulfate concentrations, an estimated 80 percent of the

total sulfate load at SD033 is derived from stockpiles. The report also concluded that sulfide

depletion cannot be expected prior to 100 years from now and would likely take considerably longer.

S-44




Application.docx

7

Table 2 Flow Contributions by Source to SD033

Source Area 5NE Area 5NW SD033

Direct

Total*

Net precipitation (Open

Water)

4% 8% - 12%

Undisturbed Runoff 2% 3% 3% 8%

Undisturbed Shallow GW 1% 2% 2% 5%

Stockpile/Road Runoff 5% 3% 2% 10%

Stockpile/Road Shallow GW 12% 6% 15% 32%

Pit Wall Runoff 13% 3% - 16%

Deep Groundwater (GW) 8% 8% - 16%

Total* 45% 33% 22% 100%

*Values may not sum exactly due to rounding

1.1.4 Nature of the Variance Sought

D. The nature of the variance sought, including an identification of the applicable rules or

standards from which a variance is sought, the period of time for which it is sought, and the

reasons relied upon by the applicant in requesting the variance.

1.1.4.1 Parameters for which Variance is Requested


bicarbonates (alkalinity), total hardness, and specific conductance (parameters of concern) at SD033.

While there are no effluent limits listed in the current Permit, the water quality standards were

assumed to be potentially applicable effluent limits because Outfall SD033 forms the headwaters of

Spring Mine Creek (Class 2B, 3C, 4A, 4B, 5, and 6 waters). The water quality standards define the

goals for a water body by designating its highest attainable uses and setting the criteria that protect

those uses.

Based on the monitoring data, the discharge at SD033 has elevated concentrations of these

parameters relative to the potentially applicable water quality standards from Minnesota Rules

Chapter 7050.0223:

Hardness - 500 mg/L – Class 3C (industrial cooling and materials transport)

and Minnesota Rules Chapter 7050.0224:

Bicarbonates – 5 meq/L (250 mg/L as CaCO3) – Class 4A (irrigation)

Specific conductance – 1,000 µmhos/cm – Class 4A (irrigation)

S-44




Application.docx

8

TDS – 700 mg/L – Class 4A (irrigation)

Table 1 presents a summary of the water quality at SD033 and compares the water quality standards

to the current water quality data for SD033. The primary constituents contributing to the elevated

specific conductance and TDS include, sulfate, hardness (calcium and magnesium), and bicarbonate.

Figure 2 illustrates the major anions and cations that are contributing to the TDS of the discharge at

SD033. As Figure 2 illustrates, sulfate is a significant contributor to the TDS and represents over 60

percent of the TDS based on average concentrations. The sulfate concentration also impacts specific

conductance, so while sulfate is not the subject of this variance request, it will need to be addressed

to meet the TDS standard.

Comparisons between the monitoring data for the parameters of concern at SD033 and the water

quality standards for Spring Mine Creek are shown in Figures 3 through 6.

As discussed above, the current Permit contains no permit limits for any of the parameters of concern

and monitoring is only required for TDS, bicarbonates (alkalinity) and specific conductance.

Monitoring for total hardness (Ca + Mg as CaCO3) is not required by the current Permit; however,

monitoring for carbonate hardness (as CaCO3) is required. While a Consent Decree between MPCA

and CE was issued in April 2010 and required CE to begin evaluating potential treatment

technologies, meeting a permit limit equivalent to the water quality standard for each of the

parameters of concern is substantially different than any limit CE has been required to comply with.

1.1.4.2 Period of Time for which Variance is Requested

CE requests this variance remain in effect for the duration of the reissued permit (no less than five

years).

1.1.4.3 Reasons Relied upon by the Applicant in Requesting the Variance


bicarbonates (alkalinity), total hardness, and specific conductance at SD033 based on the following:

It is not feasible to immediately implement a remedy to effectively mitigate or treat the

parameters of concern (TDS, bicarbonates, total hardness, and specific conductance) to the

applicable water quality standards. A variance is necessary to provide the time required to

investigate, test and implement a technically and economically feasible method for

permanent mitigation of the parameters of concern.

S-44




Application.docx

9

The cost of an active system would be a substantial burden to this nonoperational facility.

Passive long-term mitigation alternatives are not only the most compatible with this site, but

also the most economically feasible.

The results of the field studies indicate that there are no anticipated significant impacts

related to water uses, or to air or land resources.

The basis for these reasons are presented in the paragraphs below.

Iron mining operations in the Area 5 pits ceased in approximately 1988. Because the SD033

discharge is from existing pits, groundwater and runoff, and the primary source of sulfate and the

parameters of concern are from the rock stockpiles, there are no process changes that can be made to

alter the discharge to meet the water quality standards. Thus, water treatment and/or source

mitigation will be required to achieve the required reductions.

While hardness and bicarbonates are common water constituents which can be removed by processes

such as chemical precipitation, ion exchange, and membrane filtration, analysis of the overall

composition of the water discharged at SD033 indicates that sulfate (a monovalent ion) is a

significant contributor to the concentration of TDS and specific conductance. Reduction of this

parameter will be necessary to meet water quality standards for TDS and specific conductance.

CE has been actively pursuing a viable treatment/mitigation technology for SD033 since April 2010.

A Short-Term Mitigation and Implementation Plan for SD033 has been implemented and a Long-

Term Mitigation and Evaluation and Implementation Plan for SD033 has been developed. The focus

of these plans is to identify, test and evaluate alternative mitigation or treatment measures. Each of

these plans is discussed in more detail below.




in SD033 during the period the field studies were conducted. The conclusion of this report was that

the treatment alternatives evaluated required significant time for bench testing, pilot testing, and full-

scale implementation, along with significant capital and annual operation and maintenance costs , and

that they could not be readily implemented to meet the water quality standards.

S-44




Application.docx

10

The Long-Term Mitigation Evaluation and Implementation Plan for SD033 was completed with the

objective of identifying and evaluating alternatives that could potentially mitigate/reduce the existing

elevated concentrations of sulfate and the parameters of concern in SD033 over the long-term,


Plan, NPDES Field Studies- SD033 and bench testing. Combined, these documents constitute a

comprehensive review of potential treatment technologies to achieve compliance with water quality

standards for the parameters of concern at SD033.



of dissolved solids in the SD033 discharge by reducing the loading of sulfate and parameters of

concern from the stockpiles and pits. Section 6.4 of the Long-Term Mitigation Evaluation Plan for

SD033 presents a summary of the effectiveness, implementability and cost considerations relative to

the alternatives to address the parameters of concern at SD033. Based on this evaluation, source

mitigation (through source isolation of stockpile materials) is recommended as a technically and

economically viable technology for further evaluation and potential installation for the long-term

management of the discharge. For this alternative (and most of the others), both pre-implementation

study efforts and a pilot-scale testing phase are required to verify effectiveness and provide input to a

design prior to full-scale implementation.

Additionally, CE has agreed to conduct further evaluation of an active treatment technology,

membrane treatment (reverse osmosis), in accordance with the Work Plan for Investigation of

Membrane Treatment at SD033 submitted to the MPCA in September 2012. CE has also proposed to

conduct further evaluation of an additional passive treatment technology, a permeable reactive barrier

(PRB), as described in CE’s September 25, 2012 letter to the MPCA (CE, 2012a). As with the

mitigation measures and passive treatment systems identified in the Long-Term Mitigation

Evaluation and Implementation Plan for SD033, pilot-scale testing phases for both membrane

treatment and the permeable reactive barrier are required to verify effectiveness and provide input to

a design prior to potential full-scale implementation.

Section 7.3 of the Long-Term Mitigation Evaluation Plan for SD033 presents a proposed milestone

schedule for implementation of the recommendations provided in that plan and Section 3.4 of the

Work Plan for Investigation of Membrane Treatment at SD033 presents a proposed milestone

schedule specific to membrane treatment; a revised schedule for the currently proposed passive

treatment evaluations was submitted with CE’s November 29, 2012 letter to the MPCA (CE, 2012b).

S-44




Application.docx

11

Treatment of the SD033 discharge to the water quality standards is technologically feasible, however,

as concluded in the Long-Term Mitigation and Implementation Plan for SD033 (Section 7.3), time

will be required for bench testing, pilot testing and full-scale implementation of technically and

economically feasible methods for permanent mitigation of the elevated parameters.

The estimated costs of implementing each of the alternatives considered are presented in Table

3Section 6.4 of the Long-Term Mitigation Evaluation and Implementation Plan for SD033 and

discussed further in Section 1.1.5. The estimated expenses associated with identifying and

implementing an effective long-term treatment technology to reduce each of the parameters

(including sulfate as required to meet the TDS standard) to such a level that full compliance with

water quality standards is consistently achieved, will result in a significant economic burden. The

facts supporting each basis (economic and technical) are presented in the sections below.

While the concentrations of specific conductance, TDS, bicarbonates (alkalinity) and hardness at

SD033 are elevated relative to the water quality standards, and this discharge would continue

throughout the evaluation and implementation of a long-term mitigation technology, granting this

variance will not impair the existing beneficial uses or the level of water quality necessary to protect

the beneficial uses of the receiving stream, as documented in the results presented in NPDES Field

Studies Report – SD033. The results of these studies support continued discharge at the current

concentrations while a long-term solution is identified and implemented. Additional information on

the impacts of the SD033 discharge is presented in Section 1.1.8.3.

1.1.5 Economic Burden

E. If the applicant seeks a variance primarily on the grounds of economic burden, financial

statements prepared or approved by a certified public accountant, or other person acceptable to

the agency, which shall fairly set forth the status of the business, plant, system, or facility for

each of the three financial years immediately preceding the year of the application, and an

analysis of the effect of such financial status if the variance is not granted.

While the cost of treating the discharge from SD033 to reduce the parameters of concern is not the

primary sole grounds for requesting this variance, the economic impact of the various treatment

systems should be considered. This facility is inactive and not producing a product. Closure

activities at the facility have begun and CE has on-going financial responsibilities associated with

these activities.

S-44




Application.docx

12

CE’s goal is to progress toward elimination/reduction of the source of the elevated concentrations of

the parameters of concern, providing for the potential redevelopment of the site. As stated in Section

1.1.4.3, passive (non-mechanical) long-term mitigation and source mitigation alternatives are not

only the most compatible with this site, but also the most economically feasible. While there may be

active (or mechanical) treatment alternatives that would reduce the concentration of the parameters of

concern, they would require operation and maintenance costs in perpetuity. While it is not possible

to know the financial situation of a potential redevelopment enterprise, the perpetual financial

responsibility of on-going treatment would likely render this site economically infeasible for

redevelopment.

Table 3 of this document and Section 6.4 of the Long-Term Mitigation Evaluation and

Implementation Plan for SD033 presents an overview of the effectiveness, implementability,

dependability, and cost considerations relative to the alternatives to address the parameters of

concern at SD033. The estimated costs represent an estimate of the total cost of each technology as a

net present value (20 years, 3.5% discount rate) and are considered conceptual level costs or Class 5

estimates (according to the Association for the Advancement of Cost Engineering International) and

as such should only be used for comparing the relative value of the technologies evaluated. The

estimated net present values of the active treatment alternatives range from $23,900,000 for

membrane treatment to $62,500,000 for membrane treatment (reverse osmosis), while the net present

values of the passive treatment alternatives range from $1,700,000 for natural attenuation to

$37,200,000 for a permeable reactive barrier. These significant differences in net present value

further demonstrate that a passive treatment alternative would be more economically feasible than an

active treatment alternative.

S-44

Table 3 Effectiveness, Implementation, and Cost Information for Potential Treatment Technologies at SD033

Sulfate Bicarbonate HardnessTotal Dissolved

Solids

Specific

Conductivity

Suitability for

Closed SiteInvestigations Required Capital Cost Annual O&M Cost Net Present Value6

HighRequires additional cover materials

evaluation and bench or pilot testing prior

to full-scale implementation

10,400,000$ 71,000$ 10,900,000$


monitoring only170,000$ 105,000$ 1,700,000$


monitoring only890,000$ 480,000$ 7,300,000$

HighRequires hydraulics and siting evaluations


implementation

35,800,000$ 98,000$ 37,200,000$



implementation

12,400,000$ 720,000$ 22,300,000$



implementation

3,500,000$ 120,000$ 5,100,000$

LowRequires hydraulics, siting evaluations and

bench testing prior to full scale

implementation

21,700,000$ 1,110,000$ 37,500,000$

LowRequires hydraulics, siting evaluations,

bench testing, and pilot testing prior to

full scale implementation

16,300,000$ 1,400,000$ 36,200,000$

Low





9,700,000$ 1,000,000$ 23,900,000$

Low





20,700,000$ 2,800,000$ 62,500,000$

Lime Softening (+ Floating Wetland)1,5

Notes:

3. Capital cost provided is for an 85-acre geosynthtic clay liner-type cover. Actual cost depends on size and type of cover to be implemented (e.g. capital costs for a 85-acre soil cover are estimated at $3,400,000, while capital costs for a 190-acre geomembrane-

type cover may be $32,000,000).

4. Not intended to be operated as a stand-alone process. The wetland/lagoon would be coupled with the floating wetland for removal of sulfate. Cost presented is the added cost of this process.

6. 20 years, 3.5%

1. Cost for this option only includes treatment of the parameters of concern (does not specifically include treatment of sulfate to 10 mg/L).

2. Cost for this option includes treatment of sulfate in addition to the parameters of concern; however, treatment of sulfate to 10 mg/L is unproven.

Key:

Likely to be effective in meeting the water quality standard at end-of-pipe

Ability to meet water quality standard uncertain or requires additional testing to demonstrate

Unable to meet water quality standard at end-of-pipe

Implementation Considerations Estimated Costs7,8Effectiveness in Meeting Water Quality Standards

Source Isolation2,3

Natural Attenuation2

Ion Exchange (modified Sulf-IX)1

Membrane Treatment (Reverse

Osmosis)1,10

Alternative

Enhanced Natural Attenuation2

Permeable Reactive Barrier2

Floating Wetland2

Surface Flow Wetland/Lagoon2,4

Membrane Treatment (Nanofiltration)1,9

9. Nanofiltration may be capable of achieving compliance for parameters of concern, but not capable of reducing sulfate concentrations to 10 mg/L.

10. Costs shown for reverse osmosis were developed for the Short-Term Mitigation Evaluation and Implementation Plan for SD033 and have not been recalculated to reflect revised (lower) flow estimates at SD033 (revised lower based on the results from

subsequent field studies.) This cost includes treatment of sulfate to 10 mg/L.

8. Costs may vary from those presented in previously submitted Plans, due to additional information obtained during interim periods.

5. Not intended to be operated as a stand-alone process. Lime softening technology would need to be coupled with another technology such as a floating wetland for removal of sulfate.

7. These cost estimates are considered conceptual level costs or Class 5 estimates (according to the Association for the Advancement of Cost Engineering International), and should only be used for comparing the relative value of the technologies evaluated in

this Plan. The typical associated level of accuracy of Class 5 cost estimates is ±25 to 100%.

S-44




Application.docx

14

While CE is not requesting this variance primarily solely on the grounds of economic burden, the

cost of an active treatment system would will be a substantial burden to a nonoperational facility.

Furthermore, Wwhile it is not possible to know the financial situation of a potential redevelopment

enterprise, the perpetuallong-term financial responsibility of on-going active treatment wouldwill

likely be a consideration renderin the this site economically in feasibilitye for redevelopment. The

additional time required to continue to evaluate the technological and economic feasibility of these

potential treatment alternatives is critical.

To aid in the determination of economic burden as it relates to this variance request, CE has provided

additional financial information in Appendix B via the worksheets associated with the EPA Interim

Economic Guidance – Workbook (EPA-823-B-95-002; March 1995). Specifically, the contents of

each worksheet are as follows:

Worksheet A contains the rationale and approach to provide additional treatment to the water

quality standards for the pollutants for which variance are being sought.

Worksheet G contains the annualized costs using the methods from the EPA Interim

Economic Guidance.

Worksheets H through L provide information related to the financial impact to CE of not

granting the variance.

Worksheet N provides information on other factors to consider in making a determination of

widespread social and economic impacts to the surrounding area. In addition to the

information presented in the worksheet CE purchases approximately $1.5 million of services

from various industries (utilities, consultants, equipment vendors, mechanical services, etc.)

throughout northern Minnesota. If the CE NPDES permits are not re-issued, future

development at this site will not be possible. Therefore, the following are at risk:

o Future employment in Northeastern Minnesota associated with potential new mining

operations at the CE site

o County and state tax revenues

o Mining royalties to the county and state

o Spin off industries impacted by mining

As stated previously, CE’s Hoyt Lakes Mine Area was formerly owned and operated by LTV Steel

Mining Company (LTVSMC) and was purchased by CE in 2001 after LTVSMC declared bankruptcy

and ceased operation of the mine. When operation of the mine ceased, 1,500 workers lost their jobs;

this had a major effect on the economy of the “mining towns” of Hoyt Lakes and Aurora and the

S-44




Application.docx

15

surrounding rural area. Mesabi Nugget, which is located west of this property on land that was also

formerly owned by LTVSMC, has restored approximately 120 jobs to the area. While this was a

positive move, it barely begins to offset the significant economic hardship in this area. Potential

future redevelopment would bring more jobs to the area both directly and through demand for other

services; however, this development may be constrained unless a variance applicable to the outfall is

granted.

As an example of a potential project dependent on reissuance of the Hoyt Lakes Mine Area

NPDES/SDS Permit, in a report prepared for PolyMet by the Labovitz School of Business and

Economics, 2012. NorthMet Economic Impact 2011 Update; Economic Impact of PolyMet’s

NorthMet Project on St. Louis County, Minnesota, the economic impact of the proposed NorthMet

project on the region includes:

360 direct mining jobs;

330 jobs in related dependent industries;

300 jobs dependent on household spending;

Annual payroll spending of almost $330 million;

Approximately $515 million impact of mining output, or sales, on St Louis County; and

During peak construction approximately 800 jobs, $247 million in payroll taxes and $490 million in

sales impact.

1.1.6 Technological Feasibility

F. If the applicant seeks a variance on grounds that compliance is not technologically feasible, a

report from a registered professional engineer, or other person acceptable to the agency, stating

fully the reasons why compliance is not technologically feasible.

Treatment of the SD033 discharge to the water quality standards is expected to be technologically

feasible, however, as concluded in the Short-Term Mitigation and Implementation Plan for SD033

and the Long-Term Mitigation and Implementation Plan for SD033, time will be required for bench

testing, pilot testing and full-scale implementation of potentially technically feasible methods for

permanent mitigation of the elevated parameters. The primary basis of this variance application is

that meeting the water quality standards for the parameters of concern is not technologically feasible

by the next anticipated permit reissuance date.

S-44




Application.docx

16

Hardness and bicarbonates are common water constituents that can be removed by processes such as

chemical precipitation, ion exchange, and membrane filtration. Analysis of the overall composition

of the water discharged at SD033 indicates that sulfate (a monovalent ion) is a significant contributor

to the concentration of TDS and reduction of this parameter will be necessary to reduce the TDS to

the concentrations necessary to meet water quality standards. So, while sulfate is not the subject of

this variance request, significant reduction of this parameter will be required to address the TDS and

specific conductance concentrations. Removal of sulfate (and thus TDS and specific conductance) is

not as easily accomplished and bench and pilot testing will be required prior to full-scale

implementation of an alternative.

The objective of the Short-Term Mitigation Evaluation and Implementation Plan for SD033 (completed

in 2010) was to investigate readily available and proven, applicable, technically and economically

feasible methods and technologies to partially or completely mitigate the elevated concentrations of the

parameters of concern in SD033 during the period the field studies were conducted. The conclusion of

this evaluation was that all of the treatment alternatives evaluated required significant time for bench

testing, pilot testing and full-scale implementation, along with significant capital and annual

operation and maintenance costs, and that they could not be readily implemented to meet the water

quality standards.

The objective of the Long-Term Mitigation Evaluation and Implementation Plan for SD033 (Barr,

2012a) is to identify and evaluate alternatives that could potentially mitigate/reduce the existing

elevated concentrations of sulfate and the parameters of concern in SD033 over the long-term,


Plan for SD033, NPDES Field Studies- SD033 and bench testing.



of dissolved solids in the SD033 discharge by reducing the loading of sulfate and other parameters of

concern created at the stockpiles and in the pits. The alternatives evaluated included source

mitigation, natural attenuation, enhanced natural attenuation, permeable reactive barrier (PRB),

floating wetland, and a surface- flow wetland/lagoon.

The alternatives were evaluated against the following criteria: effectiveness, implementability, long-

term performance, and cost. Section 6.4 of the Long-Term Mitigation Evaluation and

Implementation Plan for SD033 presents a summary of the options evaluated for SD033. Based on

S-44




Application.docx

17

this evaluation, the following next steps were recommended for implementation of mitigation

activities at SD033:

Source mitigation and floating wetland treatment are potentially viable technologies

proposed for further evaluation and potential installation for the long-term management of

the discharge. For these two technologies, both pre-implementation study efforts and a pilot-

scale testing phase are outlined in the Long-Term Mitigation Evaluation and Implementation

Plan.

The hydrogeologic and topographic suitability of the site for a PRB will be evaluated in

accordance with MPCA recommendations.

The placement of enhanced natural attenuation through in-pit treatment will also be

considered, with the inclusion of a bathymetric survey during the pre-implementation

studies.

The use of natural attenuation as a mitigation technology will be considered as a solution

over the long-term, upon successful implementation of source mitigation.

Treatment of the other parameters of concern with a lagoon and surface-flow wetland will be

further evaluated based on the results of floating wetland and source mitigation studies and

testing.

In the MPCA’s July 25, 2012 letter to CE (MPCA, 2012), the MPCA indicated that further evaluation

of an active treatment technology, such as membrane treatment, would also be required. This

evaluation is in addition to the evaluation of passive treatment technologies at SD033 (as proposed in

the Long-Term Mitigation Evaluation and Implementation Plan for SD033). Therefore, a Work Plan

for Investigation of Membrane Treatment at SD033 was submitted to the MPCA in September 2012.

This work plan included a proposed schedule and protocol for conducting a pilot-scale test of

membrane treatment of SD033. Specifically, the pilot-scale test plan includes evaluation of reverse

osmosis technology and evaluation of associated concentrate (brine) management approaches and the

use of concentrate volume reduction technologies.

CE has also proposed to conduct further evaluation of an additional passive treatment technology, a

permeable reactive barrier (PRB), as described in CE’s September 25, 2012 letter to the MPCA (CE,

2012a).

During the development of the Short-Term Mitigation Evaluation and Implementation Plan for

SD033 (Barr, 2010b) and the Long-Term Mitigation Evaluation and Implementation Plan for SD033

S-44




Application.docx

18

(Barr, 2012a), CE has undertaken a comprehensive review of potential treatment technologies to

achieve compliance with water quality standards for the parameters of concern at SD033. This

comprehensive review included:

A literature review of mitigation/treatment technologies for the parameters of concern and

sulfate (Barr, 2010b; Section 3.0).

Preliminary screening of potential mitigation/treatment alternatives based on preliminary

assessments of effectiveness, implementability, and cost to identify a limited number of

potentially feasible alternatives for detailed evaluation (Barr, 2010b; Section 5.1 and Table

2).

Conceptual development of a plan for implementation of mitigation/treatment systems for the

parameters of concern and sulfate that could be applied to the discharge at SD033 (Barr,

2010b; Section 4.0 and Sections 5.2 through 5.4).

Evaluation of the feasibility of the mitigation/treatment technologies that were selected from

the preliminary screening process based on effectiveness, implementability, and cost (Barr,

2010b; Section 5.0).

Additional screening of potential mitigation alternatives for long-term implementation

including a review of the technologies included in the preliminary screening (Barr, 2012a;

Section 4.0).

Detailed evaluation of mitigation/treatment technologies that may prove effective for

implementation at SD0336 for removal of the parameters of concern and sulfate (Barr, 2012a;

Section 5.0).

Evaluation of the feasibility of implementing the mitigation/treatment technologies based on

effectiveness, implementability, long-term performance, and cost (Barr, 2012a; Section 6.0

and Table 7).

Recommendations for implementation (Barr, 2012a; Section 7.0).

Based on the results of the screening processes, the following potential treatment technologies were

evaluated further based on effectiveness, implementability, long-term performance, and cost:

Source isolation

Natural attenuation


Permeable reactive barrier

Floating wetland

S-44




Application.docx

19

Surface-flow wetlands/lagoon

Lime softening

Ion exchange (Sulf-IX)


Table 3 summarizes the evaluation of effectiveness, implementability, and cost for each of these

potential treatment technologies. Appendix C contains:

Further details related to the review and evaluation of the potential treatment technologies

and references to the information sources.

Further details related to each of the potential treatment technologies selected for further

evaluation.

Based on this comprehensive review of potential treatment technologies for SD033, CE has selected

four potential treatment technologies for further evaluation through pilot testing:

Floating wetlands

Source isolation

Permeable reactive barrier

Membrane treatment (reverse osmosis).

Proposed milestone schedules were developed as part of the Long-Term Mitigation Evaluation and

Implementation Plan for SD033 and the Work Plan for Investigation of Membrane Treatment at

SD033. In total, the pre-implementation studies, design of the pilot systems, and operation of the

pilot testing is expected to occur over the course of the next permit cyclea minimum of three to four

years, not including time for agency review and approval of work plans submitted throughout the

process. The complete implementation of full scale mitigation for SD033 (including design and

construction) could potentially be completed in approximately six years, again not including time for

agency review and approvals. A The proposed milestone-based schedule for the testing and

implementation of mitigation at SD033 is outlined in in Section 7.3 of the Long-Term Mitigation

Evaluation and Implementation Plan for SD033; a revised schedule for the currently proposed

passive treatment evaluations was submitted with CE’s November 29, 2012 letter to the MPCA (CE,

2012b).

S-44




Application.docx

20

1.1.7 Other Data or Information Required by Rule or Standard

G. Other additional data or information that is required by any applicable agency rule or standard.

No additional data has been required by the MPCA.

1.1.8 Other Relevant Data or Information Required by Agency

H. Any other relevant data or information that the board or the commissioner deems essential to a

determination on the application, including, but not limited to the following:

1.1.8.1 General Description of Materials Discharged, Nature of Materials and Proposed Methods for Control

1. A general description of the materials handled or processed by the applicant that are

pertinent to the subject application, and a statement of the nature and quantity of the

materials being discharged, emitted, or disposed of, and that can reasonably be expected

to be discharged, emitted, or disposed of during the period of the proposed variance, and

proposed methods for the control of these materials.

A general description of the facility and SD033 discharge characteristics is provided in Section 1.1.3.

Additional summaries of the water quality data are included in are included in the Hoyt Lakes Mine

Area NPDES/SDS Supplemental Permit Information package, which is being submitted in

conjunction with this variance request.

As presented in NPDES Field Studies Report – SD033, the elevated concentration of the parameters

of concern are a result of dissolution of reactive minerals associated with the mined Biwabik Iron

Formation (BIF) contained in stockpiles and exposed mine pit walls. The sulfate and parameters of

concern at SD033 are derived from one or more of the following potential source areas: 1) mine rock

stockpiled in the Area 5NE and Area 5NW pits (now partially submerged), 2) mine rock stockpiled at

the surface in the areas surrounding the Area 5NE and Area 5NW pits or adjacent to Spring Mine

Creek upstream of SD033, and 3) pit wall rock. This report also concluded that based on

assumptions regarding sulfate content in the waste rock stockpiles, and the field-derived sulfide

oxidation rate calculated for similar nearby stockpiles on another mining project, sulfide depletion

cannot be expected prior to 100 years from now, and would very likely take considerably longer.

Because the SD033 discharge is from existing stockpiles, pits, groundwater and runoff, there are no

process changes that can be made to eliminate the discharge or reduce the concentration of the

parameters of concern in the discharge. The proposed method of control is to continue the pursuit of

source mitigation through implementation of the recommendations presented in the Long-Term

S-44




Application.docx

21

Mitigation Evaluation and Implementation Plan for SD033. Therefore, passive technologies that

have lower need for maintenance and monitoring are given preference over mechanical technologies.

1.1.8.2 Proposed Plan to Reduce Emission Levels to Lowest Possible

2. A comprehensive proposed plan indicating the steps to be taken by the applicant during

the period of the variance, even if the applicant is seeking a permanent variance, to

reduce the emission levels or discharges to the lowest limits practical.

As presented in the sections above, the SD033 discharge is from existing stockpiles, pits,

groundwater and runoff and there are no process changes that can be made to eliminate the discharge

or reduce the concentration of the parameters of concern in the discharge. CE has been actively

pursuing alternatives to meet the water quality standards including completion of several studies

focused on the identification and evaluation of viable mitigation and/or treatment technologies and

has developed a well-designed and focused process to identify the most appropriate alternative.

The most recent report, Long-Term Mitigation Evaluation and Implementation Plan for SD033 ,

recommended the following next steps for implementation of mitigation activities at SD033:

Further evaluation and potential installation of source mitigation and floating wetland

treatment systems for the long-term management of the discharge. For both of these

technologies, both pre-implementation study efforts and a pilot-scale testing phase are

required to verify effectiveness and provide input to a design prior to full sale

implementation.

Further evaluation of the hydrogeologic and topographic suitability of the site for potential

PRB implementation.

Consideration of the placement of enhanced natural attenuation through in-pit treatment,

with the inclusion of a bathymetric survey during the pre-implementation studies.

Upon successful implementation of source mitigation, consideration of the use of natural

attenuation as a mitigation technology over the long-term.

Further evaluation of treatment with a lagoon and surface-flow wetland based on the results

of floating wetland and source mitigation studies and testing.

Section 7.0 of the Long-Term Mitigation and Implementation Plan for SD033 outlines a process for

implementing the report recommendations. A proposed milestone schedule for implementation of

the pre-implementation studies, pilot testing, and full-scale implementation (if appropriate) was

S-44




Application.docx

22

developed and a revised schedule for the currently proposed passive treatment evaluations was

submitted on November 29, 2012 and was presented as discussed in Section 1.1.6.

Additionally, as discussed in Section 1.1.6, CE has agreed to conduct further evaluation of an active

treatment technology, membrane treatment (reverse osmosis), in accordance with the Work Plan for

Investigation of Membrane Treatment at SD033 submitted to the MPCA in September 2012. This

work plan includes a proposed schedule and protocol for conducting a pilot-scale test of membrane

treatment of SD033.

CE has also proposed to conduct further evaluation of an additional passive treatment technology, a

permeable reactive barrier (PRB), as described in CE’s September 25, 2012 letter to the MPCA (CE,

2012a).

Because there are no process changes that can be made to reduce or eliminate the parameters of

concern in the SD033 discharge and there is little to no impact from these parameters on the

receiving stream (see Section 1.1.8.3), CE proposes new Interim Period Limits consistent with the

current water quality for the period of the variance. The proposed Interim Period Limits for each of

the parameters of concern are shown in Table 34. These Interim Period Limits are based on a

reasonable potential to exceed analysis using available monitoring data from January 2005 through

December 2011 with a 99-percent confidence interval, consistent with the US EPA’s Technical

Support Document for Water Quality-Based Toxics Control (US EPA, 1991). This is the level

currently achievable at the SD033 discharge.

Table 34 SD033 Proposed Interim Period Limits

Parameter of Concern

Proposed Interim Period

Limits (Daily Max and

Monthly Average)

Water Quality

Standard

Alkalinity, Bicarbonates as CaCO3 (mg/L) 465 250

Hardness (mg/L) 2,055 500

Total Dissolved Solids (mg/L) 2,607 700

Specific Conductance (µmhos/cm) 3,765 1,000

1.1.8.3 Effect on Air, Water and Land Resources which will Result from Approval of Variance

3. A concise statement of the effect upon the air, water, and land resources of the state and

upon the public and other persons affected, including those residing in the area where

the variance will take effect, which will result from board or commissioner approval of

the requested variance.

S-44




Application.docx

23

Air Impacts

Because hardness, total dissolved solids, bicarbonates and specific conductance are all the result of

dissolved minerals in the water, there are no expected air impacts. The minerals will remain

dissolved in the water at the temperatures and chemistry at which Spring Mine Creek and the

Embarrass and St. Louis Rivers flow. Therefore, there will not be any air impacts from SD033 if a

variance for the parameters of concern is granted.

Water Impacts

A year-long field study (NPDES Field Studies Report – SD033) was conducted to characterize and

assess the water quality and biological condition of streams directly adjacent and downstream of

outfall SD033. Testing was completed on the receiving water – Spring Mine Creek and a nearby

control stream – Bear Creek.

Water quality sampling and Whole Effluent Toxicity (WET) testing were conducted to evaluate

whether the groups of constituents originating from SD033 have toxic properties. Biological

monitoring, consisting of both aquatic invertebrates and fish, was also conducted to determine the

effect of discharges from SD033. Biological monitoring is important because it highlights the true

in-stream effect of a given discharge and is able to separate the “chemical” effect from the “habitat”

effect. A habitat evaluation was also conducted as part of the field studies to quantify the difference

in habitat quality between the downstream sites and the control sites used in the study.

The results of this study indicate that the chemical composition of the water from the permitted

outfall SD033 is different from the composition of the receiving water – Lower Spring Mine Creek,

and is different from waters that served as reference or background sites for the field investigation.

As noted, the SD033 discharge has elevated concentrations of the parameters of concern.

Whole Effluent Toxicity (WET) Tests

The chronic WET test results strongly suggest that it is unlikely that the constituents observed and

the concentration of the constituents observed will cause any mortality of aquatic life in Spring Mine

Creek (the receiving stream). Reproduction (which is a much more sensitive indicator than

mortality) of the test species C. dubia was reduced in two tests compared to the reference site Bear

Creek and the Embarrass River. It should be noted that reproduction was not severely reduced in

SD033 compared to the reference sites and for one test there was no significant difference between

SD033 and the reference sites.

S-44




Application.docx

24

WET testing (particularly chronic tests with C. dubia) is a sensitive methodology and the results

suggest that the SD033 discharge water is lacking any notable toxicant and the additive or cumulative

effects of the constituents present are not significant. A statistical analysis of outfall SD033 water

and the receiving waters suggest that reduced reproduction for C. dubia in some tests is not due to

toxicity, but rather is largely due to nutrient constituents that are lacking in the SD033 water,

including organic carbon, phosphorus, nitrogen, and possibly some trace metals. It does not appear

that bicarbonate or hardness are responsible for the WET test results that indicate reproductive

differences between water from SD033 and the reference sites.

Macroinvertebrates

Overall, the macroinvertebrate community in Spring Mine Creek just downstream of outfall SD033 is

comparable to the macroinvertebrate community in Bear Creek (the chosen reference site) and there

is no evidence that the macroinvertebrate community in Spring Mine Creek is being notably

impacted by the discharge as SD033.

In Lower Spring Mine Creek there are more sensitive species. It should be noted that the habitat in

Upper Spring Mine Creek has better habitat quality (according to the QHEI) compared to Bear

Creek. Also, some of the more subtle metrics calculated (e.g., percent Simuliidae and percent

Diptera, percent Ephemeroptera, Plecoptera, and Tricoptera) suggest that Upper Spring Mine Creek

(SD033) has more tolerant species. However, the stream segment assessed at Upper Spring Mine

Creek has a much smaller watershed and flow, and hence it is expected that there will be less

diversity simply due to the stream size and order. Again, due to the similarity of the

macroinvertebrate communities in Bear Creek and Upper Spring Mine Creek, it can be concluded

that there is no measurable or noticeable effects on the macroinvertebrate community in Spring Mine

Creek due the SD033 discharge.

Fish

Upper Spring Mine Creek (SD033) did not have fish habitat and was therefore not sampled. The fish

community at Lower Spring Mine Creek was comparable to the fish community at the reference site,

Bear Creek; Lower Spring Mine Creek fared better than Bear Creek for 4 of the 5 comparable fish

community metrics. Overall, Lower Spring Mine Creek had higher species richness and Simpson’s

diversity and lower proportions of tolerant species and omnivorous species, compared to Bear Creek.

The difference in the proportion of insectivorous individuals between Bear Creek and Lower Spring

Mine Creek was not considerably high and given that 50% of the species caught at Lower Spring

S-44




Application.docx

25

Mine Creek were insectivores and only 20% were omnivores, the overall trophic structure and

composition at Lower Spring Mine Creek was reflective of a stream with minimal disturbance. The

absence of any fish individuals with anomalies such as lesions, tumors or eroded fins, further

corroborates the finding of no measurable or notable disturbance to the biological community in

Lower Spring Mine Creek.

Summary of Field Study Results

Overall, the results from the Stream Investigation indicate that while the SD033 discharge water has

elevated concentrations of some parameters (e.g., sulfate, bicarbonates, magnesium, calcium), the

biological monitoring data for fish and macroinvertebrates indicate no measurable or notable effects

in the upstream or downstream portions of Spring Mine Creek, compared to the data from the

reference stream (Bear Creek).

Downstream River Water Users

Municipal Water Treatment Facilities –- Based on a review of the water appropriation permits issued

by the Minnesota DNR1, the only municipal user of water in the vicinity of the site is the City of

Hoyt Lakes. However, they appropriate water from Colby Lake which does not receive water from

Spring Mine Creek. Thus, the City of Hoyt Lakes is not affected by the discharge. There are no

municipal users of water downstream of SD033 on Spring Mine Creek or the Embarrass River.

Industrial Water Users – Based on a review of the water appropriation permits issued by the

Minnesota DNR, there are no industrial uses of Spring Mine Creek or the Embarrass River

downstream of the SD033 discharge. There are industrial water users located further downstream on

the St Louis River (United Taconite, Tate & Lyle Citric Acid, Inc., USG, Minnesota Power, Sappi,

Heathmark, Inc. and WLSSD) which appropriate water from the St. Louis River.

Other Permitted River Water Users – There are no appropriations permits for using the water from

Spring Mine Creek or the Embarrass River for agricultural irrigation (either crop or livestock

watering), or for other uses.

Non-Permitted River Water Users – No unpermitted users are known to use either Spring Mine Creek

or the Embarrass River.

1 www.dnr.state.mn.us/waters/watermgmt_section/appropriations/wateruse.html

S-44




Application.docx

26

Land Resources

Because there are no permitted water appropriations for agricultural purposes (see above), and

because there is little if any agriculture in the area, it is unlikely that there will be impacts on row

crops, small grains or livestock irrigation. However, there may be unpermitted uses, so potential

impacts on a variety of crops, trees and grasses are noted below.

Table 4 5 provides a listing of garden crops and fruits that are the most sensitive to salinity: beans,

carrots, onions, radishes, strawberries, and raspberries (threshold levels ranging from 400 to 1,000

mg/L). Cabbage, lettuce, peppers, spinach, sweet potatoes, tomatoes, apples, pears, grapes, plums,

blackberries, and boysenberries are moderately sensitive to salinity with threshold levels of 500 to

1,300 mg/L.

Table 45 Relative Salt Tolerance of Various Cultivated Plants*

Non Tolerant

(0–1,400 mg/L)

Slightly Tolerant

(1,400–2,800 mg/L)

Moderately Tolerant

(2,400–5,600 mg/L)

Tolerant

(5,600–11,200 mg/L)

Nurseries

azalea

cottoneaster

red pine

rose

sugar maple

viburnum

white pine

apple

forsythia

linden

Norway maple

red maple

black locust

boxwood

beet

red oak

white ash

white oak

arborvitae

juniper

Russian olive

Truck Gardening

begonia

blueberry

carrot green

bean onion

pea radish

raspberry

strawberry

cabbage

celery

cucumber

grape lettuce

pepper

potato

snapdragon

sweet corn

broccoli

chrysanthemum

geranium

marigold

muskmelon

spinach

squash

tomato

zinnia

asparagus

Swiss chard

Golf Courses

creeping bentgrass

Kentucky bluegrass

perennial ryegrass

red fescue

nugget Kentucky

bluegrass

seaside creeping

bentgrass

alkaline grass

* Source: Rosen et al “Soil Test Interpretations and Fertilizer Management for Lawns, Turf Gardens, and Landscape Plants”

S-44




Application.docx

27

According to this list, there are several trees and shrubs that are described as “non -tolerant” with

plant damage expected at TDS concentrations of 0 to 1,400 mg/L. All other listed trees and shrubs

are tolerant of salinity levels over 1,400 mg/L. The list also shows that all grasses are tolerant of

salinity levels of over 1,400 mg/L.

Given the relatively low population in the area and the short growing season, there does not appear to

be a major impact on the land resources which will result from the agency’s approval of the

requested variance.

1.1.8.4 Statement of Alternatives to Proposed Operation which have been Considered

4. A statement of the alternatives to the proposed operation under the variance which have

been considered by the applicant.

The discharge at SD033 is not associated with a proposed or current operation; rather it is an existing

discharge of groundwater seepage and stormwater runoff. The continued occurrence of groundwater

seepage and stormwater runoff at this location is independent of any action by CE. CE would

continue to proceed with the MDNR-approved Closure Plan. Therefore, there are no alternative

operations to consider.

1.1.8.5 Effects from Denial of Variance

5. A concise statement of the effect on the establishment, maintenance, operation, and

expansion of business, commerce, trade, traffic, and other economic factors that may

result from approval and from denial of the requested variance.

Compliance with the water quality standard for the parameters of concern at this time would result in

substantial economic burden to a closed facility with limited revenue. Implementing a successful

remedy prior to the re-issuance of the Permit is not feasible due to the time required to evaluate, test,

and implement a viable mitigation and /or treatment technology.

Because the source of the discharge at SD033 is stormwater and groundwater seepage, there are no

process changes that can be made to eliminate the elevated concentrations for the parameters of

concern. Granting a variance during the next permit cycle will allow CE to properly identify, test,

design and implement an effective mitigation and/or treatment technology without compromising the

environment or public health, safety and welfare.

S-44




Application.docx

28

Also, as identified in Section 1.1.5 of this document, the perpetual financial responsibility of on-

going treatment would likely render this site economically infeasible for re-development.denial of the

variance may jeopardize future economic growth and employment in Northeastern Minnesota.

1.2 Variance Requirements Relative to Minn. Rule Part 7052.0280 and 7052.0320

In order to receive a variance for a new or expanded discharge in the Lake Superior Basin, relative

requirements in Minn. Rules 7052.0280 and 7052.0320 must be met.

Because a variance is not being requested for a GLI-pollutant, MN Rule 7052.0280 does not apply.

Because a variance is not being requested for any bioaccumulative chemicals of concern (BCC) or

bioaccumulative substances of immediate concern (BSIC), the requirements of MN Rules 7052.0320

are not applicable.

1.3 United States Environmental Protection Agency (EPA) Facility Specific Variance Application

Please refer to Appendix A for the EPA Facility Specific Standard Variance Data Sheet.

S-44




Application.docx

29

2.0 References

Barr Engineering Company (Barr), 2010a. NPDES Field Studies Plan – SD033. Prepared for Cliffs

Erie, L.L.C. and PolyMet Mining Inc. May 2010.

Barr Engineering Company (Barr), 2010b. Short-Term Mitigation Evaluation and Implementation


PolyMet Mining Inc. June 2010.

Barr Engineering Company (Barr), 2011a. NPDES Field Studies Report – SD033. Prepared for

Cliffs Erie, L.L.C. and PolyMet Mining Inc. September 2011.

Barr Engineering Company (Barr), 2011b. Permeable Reactive Barrier Bench Test Report – SD033.

Prepared for Cliffs Erie, L.L.C. and PolyMet Mining Inc. September 2011.

Barr Engineering Company (Barr), 2011c. Floating Wetland Bench Test Report – SD033. Prepared

for Cliffs Erie, L.L.C. and PolyMet Mining Inc. September 2011.

Barr Engineering Company (Barr), 2012a. Long-Term Mitigation Evaluation and Implementation


PolyMet Mining Inc. April 2012.

Barr Engineering Company (Barr), 2012b. Work Plan for Investigation of Membrane Treatment at

SD033, NPDES/SDS Permit No. MN0042536. Prepared for Cliffs Erie LLC and PolyMet

Mining Inc. September 2012.

Cliffs Erie LLC (CE), 2012a. RE: Consent Decree in MPCA v. Cliffs Erie, Court File No. 62CV-IO-

2807 – Response to July 25, 2012 MPCA Letter (“Review of Long Term Plans – SD033 and

SD026”). September 25, 2012.

Cliffs Erie LLC (CE), 2012b. RE: April 6, 2010, Cliffs Erie, LLC Consent Decree – Response to

October 31, 2012 MPCA Letter (“Review of Response to July 25, 2012 MPCA Letter”).

November 29, 2012.

Minnesota Pollution Control Agency (MPCA), 2012. RE: April 6, 2010, Cliffs Erie, LLC Consent

Decree, Review of Long Term Plans – SD033 and SD026. July 25, 2012.

S-44




Application.docx

30

Labovitz School of Business and Economics, 2012. NorthMet Economic Impact 2011 Update:

Economic Impact of PolyMet’s NorthMet Project on St. Louis County, Minnesota. January

2012.

U.S. Environmental Protection Agency (US EPA), 1991. Technical Support Document for Water

Quality-Based Toxic Control. EPA/505/2-90-001. March 1991.

S-44

!. AREA 5NE

AREA 5SW

PETER MITCHELL

PETER MITCHELL

AREA 5SE

SPRING MINE

AREA 5NW

GW-001

Sprin

g Mine

Cree

k

Ridge Creek

SD033

!. Existing Surface DischargesRivers and Streams

DNR Mine Features (2009)StockpileIn-Pit StockpileMine PitTailings Basin

2010 FSA Aerial PhotoBarr

Foote

r: ArcG

IS 10

.0, 20

12-03

-06 16

:30 Fi

le: I:\

Proje

cts\23

\69\10

72\M

aps\R

eport

s\Sho

rt_Te

rm_M

itigati

on_E

valua

tion_

SD03

3\NPD

ES_P

ermitti

ng\Fi

gure

1 Gen

eral S

ite La

yout.

mxd U

ser: a

rm2

Figure 1GENERAL SITE LAYOUT

SD033Cliffs Erie, LLC

I2,000 0 2,0001,000

Feet

S-44


0

200

400

600

800

1000

1200

1400

1600

1800

2000

SD033 TDS

TDS

(mg/

L)

AlkalinityMagnesiumSodiumCalciumOtherSulfate

Class 4A TDS WQS

S-44

0

100

200

300

400

500

Bic

arb

on

ate

s (

mg

/L)

Figure 3 SD033 Water Quality Data: Bicarbonates


S-44

0

100

200

300

400

500

600

700

800

900

1000

1100

1200

1300

1400

1500

1600

Hard

ness,

To

tal (m

g/L

)Figure 4 SD033 Water Quality Data: Hardness, Total


S-44

0

500

1000

1500

2000

2500

3000

3500

Sp

eci

fic

Co

nd

uct

an

ce (

µm

ho

s/cm

)Figure 5 SD033 Water Quality Data: Specific Conductance

Water Quality Standard = 1,000 umhos/cm

S-44

0

200

400

600

800

1000

1200

1400

1600

1800

2000

2200

2400

TD

S (

mg

/L)

Figure 6 SD033 Water Quality Data: Total Dissolved Solids (TDS)


S-44

Appendix A

EPA Facility Specific Standard Variance Data Sheet

S-44

Facility Specific Standard Variance Data Sheet

Directions: Please complete this form electronically. Record information in the space provided. Select checkboxes by

double clicking on them. Do not delete or alter any fields. For citations, include page number and section if applicable.

Please ensure that all data requested are included and as complete as possible. Attach additional sheets if needed.

Section I: General Information

Name of Permittee: Cliffs Erie LLC

Facility Name: Cliffs Erie Hoyt Lakes Mining Area

Submitted by: Craig Hartmann, Area Manager - Facilities

State: Minnesota Substance:

Alkalinity bicarbonate as CaCO3,

total hardness, total dissolved solids

(TDS) and specific conductance

Date completed: 04-02-2012

Permit #: MN0042536 WQSTS #: SD033

Duration of Variance Start Date: Permit reissuance date End Date: Duration of the permit (no less than

5 years

Is this permit a: First time submittal for variance. Renewal of a previous submittal for variance. (Complete Section IX)

Description of proposed variance: A variance from the water quality standards for Alkalinity bicarbonate as CaCO3, total

hardness, total dissolved solids and specific conductance is necessary to provide the time required to investigate, test and

implement a technically and economically feasible method for permanent mitigation of these parameters.

List names of all who assisted in the compilation of data for this form, including the completion date of their contribution:

Cliffs Erie LLC and Barr Engineering - April 2, 2012

Section II: Criteria and Variance Information

Water Quality Standard from which variance is sought: Total Hardness – 500 mg/L [Class 3C - industrial cooling and materials transport];

Bicarbonates– 5 meq/L (250 mg/L as CaCO3), specific conductance – 1000

µmhos/cm; TDS – 700 mg/L [Class 4A-irrigation]

Ambient substance concentration: See below Measured Estimated Default Unknown

If measured or estimated, what was the basis? Include citation.

The discharge occurs at the headwaters of Spring Mine Creek. Therefore, the ambient water quality of Spring Mine Creek at the

point of the discharge is equivalent to the water quality of the discharge.

Average effluent discharge rate: 0.25MGD Maximum effluent discharge rate: 0.25MGD

Effluent substance concentration: See Minnesota

Variance Application

Table 1

Measured Estimated Default Unknown

If measured or estimated, what was the basis? Include citation. Average effluent concentrations were calculated using

historical water quality monitoring data from the period of January 2005 through December 2011. See the Minnesota variance

application.

Level currently achievable (LCA):

Total Hardness – 2,055mg/L*

Alk. Bicarb. as CaCO3 – 465 mg/L*

Spec. Conductance 3,765 µmhos/cm*

TDS – 2,607 mg/L* *Daily Max and

Monthly Average effluent concentrations

Variance Limit: To be determined.

Target value(s): Water quality standards listed above.

What data were used to calculate the LCA, and how was the LCA derived? Immediate compliance with LCA is required.

The LCAs are based on a reasonable potential to exceed analysis using available monitoring data from January 2005 through

December 2011 with a 99-percent confidence interval.

S-44

Explain the basis used to determine the variance limit (which must be LCA). Include citation. An RPE calculation was

the basis for the proposed LCA.

Select all applicable factors applicable as the basis for the variance as

provided for by 40 CFR 131.10(g). Summarize justification below: 1 2 3 4 5 6

See Minnesota variance request.

Section III: Location Information

Counties in which water quality is potentially impacted: St. Louis County, Minnesota

Receiving waterbody at discharge point: Spring Mine Creek (headwaters)

Flows into what stream / river? Embarrass River How many miles downstream? 4.4

Coordinates of discharge point (UTM

or Latitude and Longitude): UMT Northing 5272970, Easting 569307, Zone 15N, Datum NAD 83

What are the designated uses associated with this waterbody? Minnesota Class 2B, 3C, 4A, 4B, 5, 6 receiving water

(Spring Mine Creek)

What is the distance from the point of discharge to the point downstream where the concentration of the substance falls to

less than or equal to the chronic criterion of the substance for aquatic life protection? The discharge at SD033 currently

meets all chronic criteria applicable to Class 2B waters.

Provide the equation used to calculate that distance (include definitions of all variables and identify the values used for the

clarification, and include citation): Not applicable.

Identify all other variance permittees for the same substance which discharge to the same stream, river, or waterbody in a

location where the effects of the combined variances would have an additive effect on the waterbody:

To our knowledge there are no existing variance permittees that discharge at a location downstream of Spring Mine Creek that

have been granted variances for the same parameters of concern.

Please attach a map, photographs, or a simple schematic showing the location of the discharge point as well as all

variances for the substance currently draining to this waterbody on a separate sheet.

Is receiving waterbody on CWA 303 (d) list? If yes, please list the impairments below. Yes No Unknown

Section IV: Public Notice

Has a public notice been given for this proposed variance? Yes No

If yes, was a public hearing held as well? Yes No

What type of notice was given? Notice of variance included in notice for permit. Separate notice of variance.

Date of public notice: MPCA public notice process will be

followed Date of hearing:

Were comments received from the public in regards to this notice or hearing? Yes No

S-44

If yes, where can these comments be found?

Section V: Human Health

Is receiving water designated as a Public Water Supply? Yes No

Applicable criteria affected by variance: .

Identify any expected impacts that the variance may have upon human health, and include any citations:

Not applicable.

Section VI: Aquatic Life and Environmental Impact

Aquatic life use designation of receiving water:

Minnesota Class 2 aquatic life and recreation use designations apply to

receiving water (Class 2B applies at the discharge point per MN Rules

7050.0222, subp. 2)

Applicable criteria affected by variance: Not Applicable

Identify any environmental impacts to aquatic life expected to occur with this variance, and include any citations:

No environmental impacts are expected – see Minnesota Variance Application.

List any Endangered or Threatened species known or likely to occur within the affected area, and include any citations:

See the attached table which provides the threatened or endangered species within 5 miles of the discharge point (state or federal

listed) and approximate distance from the discharge point.

Section VII: Economic Impact and Feasibility

What modifications would be needed to comply with current limits? Include any citations.

Investigation of technically and economically feasible methods for permanent mitigation of the parameters of concern is required

to determine the modifications required to comply with water quality standards.

How long would it take to implement these changes? 5+ years

Estimate the capital cost: Dependent on mitigation or treatment alternative selected to reduce loadings.

Estimate additional O & M cost: Dependent on mitigation or treatment alternative selected to reduce loadings.

Citations: Long Term Mitigation Evaluation Plan submitted to MPCA

Estimate the impact of treatment on the effluent substance concentration, and include any citations:


consideration of the resulting effluent concentrations for the parameters of concern.

Identify any expected environmental impacts that would result from further treatment, and include any citations:


consideration of the expected environmental impacts. Alternatives are being evaluated (See Long Term Mitigation Evaluation

Plan submitted to the MPCA)

Is it technically and economically feasible for this permittee to modify the treatment

process to reduce the level of the substance in the discharge? Yes No Unknown

S-44

Provide the basis for this conclusion, including citations. If treatment is technically infeasible, provide an analysis

of the factors that demonstrates technical infeasibility. If treatment is economically infeasible, provide an analysis

of the economic cost to ratepayers that demonstrates economic infeasibility. Attach additional sheets if necessary.

Details regarding technical and economical feasibility can be found in the Minnesota Variance Application.

If treatment is possible, is it possible to comply with the limits on the substance? Yes No Unknown

If it is, what prevents this from being done? Include any citations.

List any alternatives to current practices that have been considered, and why they have been rejected as a course of action,

including any citations:

The details of these activities are provided in the Minnesota Variance Application.

Section VIII: Compliance with Water Quality Standards

Describe all activities that have been, and are being, conducted to reduce the discharge of the substance into the receiving

stream. This may include existing treatments and controls, consumer education, promising centralized or remote

treatment technologies, planned research, etc. Include any citations.

Cliffs Erie LLC has completed a Short Term Mitigation Plan to investigate readily available and proven, applicable, technically

and economically feasible methods and technologies to partially or completely mitigate the elevated concentrations of the

parameters of concern at SD033. The details of these activities can be found in the Minnesota Variance Application.

Describe all actions that the permit requires the permittee to complete during the variance period to ensure reasonable

progress towards attainment of the water quality standard. Include any citations. There are no current permit

requirements regarding the attainment of the water quality standards for which a variance is sought. Cliffs Erie LLC has proposed

a long term mitigation plan to investigate technically and economically feasible methods for permanent mitigation of the

parameters of concern. The details of these activities can be found in the Minnesota Variance Application.

Section IX: Compliance with Previous Permit (Renewals Only)

Date of previous submittal:

NA – first time EPA

application Date of EPA approval: NA – first time EPA application

S-44

Previous Permit #: MN0042536 Previous WQSTS #: NA – first time EPA application

Effluent substance concentration: Varies – see Minnesota variance

request. Variance Limit:

NA – first time MPCA

variance

Target value(s): Applicable water quality standards – see above Achieved? Yes No Partial

For renewals, list previous steps that were to be completed. Show whether these steps have been completed in compliance

with the terms of the previous variance permit. Attach additional sheets if necessary.

Condition of previous variance Compliance

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Yes No

Citations:

S-44

Summary of Endangered or Threatened Species Within 5 Miles of SD033

Common Name Scientific Name MN Status Federal Status

NHIS Records within 1

Mile

NHIS Records

within 1-2 Miles

NHIS Records

within 2-5 Miles

Colonial Water Bird Nesting Site

N/A N/A N/A 0 1 1

Northern Goshawk Accipiter gentilis Tracked* N/A 0 0 3

Bog Rush Juncus stygius var.

americanus Species of Special

Concern N/A 0 0 1

Club-spur Orchid Plantanthera clavellata Species of Special

Concern N/A 0 0 1

Clustered Bur-reed Sparganium glomeratum Species of Special

Concern N/A 0 0 1

Floating Marsh Marigold Caltha natans Endangered N/A 0 0 1

Lapland Buttercup Ranunculus lapponicus Species of Special

Concern N/A 0 0 1

Least Moonwort Botrychium simplex Species of Special

Concern N/A 0 0 2

Matricary Grapefern Botrychium

matricariifolium Tracked* N/A 0 0 2

Michigan Moonwort Botrychium michiganese Tracked* N/A 0 0 1

Northern Comandra Geocaulon lividum Tracked* N/A 0 0 1

Pale Moonwort Botrychium pallidum Endangered N/A 0 0 1

Prairie Moonwort Botrychium campestre Species of Special

Concern N/A 0 0 1

Small Shinleaf Pyrola minor Species of Special

Concern N/A 0 0 1

Woolgrass Scirpus pedicellatus Tracked* N/A 0 0 2

* Note: Species is tracked but not legally protected

S-44

Appendix B

EPA Interim Economic Guidance Workbook

S-44

0.0 MGD

0.0 MGD

Worksheet A

Pollution Control Project Summary Information

Cliffs Erie, LLC

Please refer to Section 1.1.6 Technological Feasibility and Appendix C of the Variance Application for further

details related to the pollution control options both currently under consideration and that have been eliminated

from consideration.

Current Capacity of the Pollution Control System

0.0%

TBD

TBD

Current Excess Capacity

Expected Excess Capacity after Completion of Project

Projected Groundbreaking Date

Projected Date of Completion

Please describe the pollution control project being proposed below.

TBD

There is not currently a pollution control system installed at SD033. This

variance is necessary to provide the time required to investigate, test and

implement a technically and economically feasible method for permanent


Design Capacity of the Pollution Control System

(see previous)

(see previous)

Please describe the other pollution control options considered, explaining why each options was rejected.

As described in this Variance Application for SD033, CE has been actively pursuing alternatives to meet the

water quality standards, including completion of several studies focused on the identification and evaluation of

viable mitigation and/or treatment technologies and has developed a process to identify the most appropriate

alternative. However, additional time is required to test, evaluate and implement a viable solution. Therefore, the

type of pollution control system that will be implemented at SD033 is yet to be determined.

(Please refer to Section 1.1.6 Technological Feasibility of the Variance Application for further details)

S-44

$9,700,000 (1)

3.5% (i)

10 (n)

0.1202 (2)

$1,166,341 (3)

$1,000,000 (4)

$2,166,000 (5)


Verify Project Costs 3.1.a 3-2

Capital Cost to be Financed 3.1.a; 3.1.b 3-2; 3-3

Annual Cost of Operation and Maintenance 3.1.b 3-3

Interest Rate for Financing 3.1.b 3-3Time Period for Financing 3.1.b 3-3

Cliffs Erie, LLC

Calculation of Total Annualized Project Costs

Worksheet G

Annual cost of operation and maintenance (including but not limited

to monitoring, inspection, permitting fees, waste disposal charges,

repair, administration and replacement) ($)2,3

Total annual cost of pollution control project [(3) + (4)]


Capital costs to be financed ($)3

Notes:1 While actual payback schedules may differ across projects and companies, assume equal annual payments over a 10-year period for

consistency in comparing projects.

Interest rate for financing (%)

Time period of financing (Assume 10 years1)

Annualization factor = i/([(1 + i)n - 1] + i)

Annualized capital cost [(1) × (2)]

2 For recurring costs that occur less frequently than once a year, pro rate the cost over the relevant number of years (e.g., for pumps

replaced once every three years, include one-third of the cost each year).

3 These costs assume treatment by membrane treatment (nanofiltration) as a representative of the cost of potential pollution

control systems. Please note that this does not indicate that membrane treatment (nanofiltration) is a viable, effective, or

appropriate treatment technology for SD033; additional time is required to test, evaluate and implement a viable solution at

SD033.

S-44

Applicant Name

Three most recently completed fiscal years (most recent first): 2011 2010 2009

Revenues ($) $0 $0 $0

Cost of Goods Sold (including the cost of materials, direct labor, indirect labor,

rent and heat) ($)$0 $0 $0


administrative, interest, R&D expenses, and depreciation on common

property) ($)

-$14,157,808 $3,994,792 $1,490,769

Net Income after Taxes ($)* $14,157,808 -$3,994,792 -$1,490,769

Depreciation ($) $0 $0 $0

Current Assets (the sum of inventories, prepaid expenses, and accounts

receivable) ($)$25,272,774 $3,983,776 $3,647,055

Current Liabilities (the sum of accounts payable, accrued expenses, taxes,

and the current portion of long-term debt) ($)$1,139,288 $3,660,827 $1,896,962

Current Debt ($) $0 $0 $0

Long-term Debt ($) $0 $0 $0

Long-term Liabilities (long-term debt such as bonds, debentures, and bank

debt, and all other noncurrent liabilities such as deferred income taxes) ($)*$15,724,177 $14,986,879 $13,444,532

Owner Equity (the difference between total assets and total liabilities,

including contributed or paid in capital and retained earnings) ($)*$12,157,638 $8,080,317 $16,287,671


Financial Impact Analysis (overview) 3.2 3-3

Current Assets 3.2b 3-7Current Liabilities 3.2b 3-8


Data Needed to Calculate the Primary and Secondary Indicators (for Worksheets H, I, J, K, & L)

Cliffs Erie, LLC

Cliffs Erie, LLC

Note:

* 2011 was an atypical year. 2011 results include the final financial settlements of significant asset sales, which was a one time ballon

payment. 2009-2010 are more representative of a typical year; however, they also include an income stream that no longer exists following

the final financial settlements of the asset sales in 2011.

S-44

EBT =

R =

CGS =

CO =

2009

R $0 (1)

CGS $0 (2)

CO $1,490,769 (3)

EBT [(1) - (2) - (3)] -$1,490,769 (4)


Revenues

Cost of Goods Sold (including the cost of materials, direct labor, indirect labor, rent and

heat)


administrative, interest, R&D expenses, and depreciation of common property)

2011

$0

$0

-$14,157,808

$14,157,808

Worksheet H

Calculation of Earnings Before Taxes With and Without Pollution Control Project Costs

Cliffs Erie, LLC

A. Earnings Without Pollution Control Project Costs

EBT = R - CGS - CO

Considerations: Have Earnings Before Taxes changed over the three year period? If so, what would a "typical" year's

EBT be? Explain below.

$3,994,792

-$3,994,792

2010

2011 was an atypical year. 2011 results include the final financial settlements of significant asset sales, which was a one

time ballon payment. 2009-2010 are more representative of a typical year; however, they also include an income stream

that no longer exists following the final financial settlements of the asset sales in 2011. This income stream was

approximately $3.0 million annual in 2010 and $1.5 million annual in 2009, and was related to the asset sales that were

concluded in 2011. With the financial impact of these asset sales removed, Earnings Before Taxes (EBT) for each of the

years would be approximately: 2011: -$2.3 million (loss), 2010: -$7.0 million (loss), 2009: -$3.0 million (loss).


Where:

$0

$0

S-44

EWPR =

EBT =

ACPR =

(5)

(6)

(7)

No

ComponentProfitability 3-6


2011

$14,157,808

3.2.a

Section

Additional comments:

Earnings will not be positive when comments in (A) above are considered.

Page

EBT (4)

ACPR [Worksheet G, (5)]

EWPR [(5) - (6)]

Considerations: Will earnings be positive after paying the annual cost of pollution control?

$2,166,000

$11,991,808

The Most Recently

Completed Fiscal

Year

Where:

B. Earnings with Pollution Control Project Costs

EWPR = EBT - ACPR

(Worksheet H cont.)

Earnings with Pollution Control Project Costs

Earnings Before Taxes (4)

Total Annual Costs of Pollution Control Project [Worksheet G, (5)]

S-44

Where: PRT =

EBT =

R =

2009

EBT [Worksheet H, (4)] -$1,490,769 (1)

R [Worksheet H, (1)] $0 (2)

PRT [(1) / (2)] 0.00 (3)


No, use 2010. It is more representative of a 'typical' year.Is the most recent year typical of the three years?

How do these profit rates compare with the profit rates for this line of business?

2011


2010

PRT = EBT ÷ R

Profit Rate Before Taxes


Revenues

Considerations: How have profit rates changed over the three years?

Please Note: 2011 was an atypical year. 2011 results include the final financial settlements of significant asset sales, which was a

one time ballon payment. 2009-2010 are more representative of a typical year; however, they also include an income stream that no

longer exists following the final financial settlements of the asset sales in 2011.

Cliffs Erie LLC is a non-operating mining entity. The only significant income stream for Cliffs Erie LLC in the past has

come from the sale of its assets. Once the assets of value have all been sold, much of which has already happened by

2011, Cliffs Erie will stop generating any income at all.

$0

0.00

Worksheet I

Calculation of Profit Rates With and Without Pollution Control Project Costs

Cliffs Erie, LLC

-$3,994,792$14,157,808

A. Profit Rate Without Project Costs

$0

0.00

S-44

PRPR =

EWPR =

R =

EWPR [Worksheet H, (7)] (4)

R [Worksheet H, (1)] (5)

PRPR [(4) / (5)] (6)

0%

Page

3-2

3-6

3-6

3-6

3-6

3-6

3-7

Before-Tax Earnings With Pollution Control Costs

Revenues

Effect of Pollution Control on Profit

Potential to Raise Prices

Considerations:

What would be the percentage change in the profit rate for the most recent year due to pollution control costs? [(PRPR -

How does the Profit Rate with Pollution Control Costs compare to the profit rate of this line of business?

3.2.a

3.2.a

3.2.aEarnings Before Taxes



2011

$11,991,808

$0

0.00

The Most Recently

Completed Fiscal Year

Where:

B. Profit Rate With Pollution Control Costs

PRPR = EWPR ÷ R

Profit Rate with Pollution Control Costs

Is there ability to raise prices to cover some or all of the pollution control costs? Explain below:

(Worksheet I cont.)

3.2.a

3.2.a

Comparison to Similar Line of Business

Interpretation of Profit Test


Section

3.1b

3.2.a

Component

Revenues

Profitability (overview)

S-44

CR =

CA =

CL =

2010

CA $3,983,776 (1)

CL $3,660,827 (2)

CR [(1) / (2)] 1.09 (3)

No

Section

3.2.b

3.2.b

3.2b

3.2b

3.2.b

3.2.b

No, use 2010. It is more representative of a 'typical'

year's ratio.*

Considerations:

Is the current ratio (3) greater than 2.0?

How does the current ratio (3) compare with the current ratios for other firms in this line of

business?



the three years?


significant asset sales, which was a one time ballon payment. 2009-2010 are more representative

of a typical year; however, they also include an income stream that no longer exists following the

final financial settlements of the asset sales in 2011.

$1,896,962

1.92

2009

$3,647,055

$1,139,288

3-8

3-9


Liquidity (overview)

Current Ratio

Current Assets

Current Liabilities

Interpretation of Current Ratio


Component Page

3-7

3-7

3-7

3-8

Worksheet J

Calculation of the Current Ratio

Cliffs Erie, LLC

22.18

CR = CA ÷ CL

Where: Current Ratio

Current Assets (the sum of inventories, prepaid expenses, and

accounts receivable)

Current Liabilities (the sum of accounts payable, accrued

expenses, taxes, and the current portion of long-term debts)

2011

$25,272,774


S-44

BR =

CF =

TD =

2009

Net income after taxes -$1,490,769 (1)

Depreciation $0 (2)

CF [(1) + (2)] -$1,490,769 (3)

Current debt $0 (4)

Long-term debt $0 (5)

TD [(4) + (5)] $0 (6)

BR [(3) / (6)] 0.00 (7)

No

Yes

No

Section Page

3.2.b 3-9

3.2.b 3-9

3.2.b 3-10

3.2.b 3-10

Interpretation of Beaver's Ratio


2011

$14,157,808

$0

$14,157,808

$0

$0

0.00

$0

$0

$0

0.00

Component

Solvency (overview)

Beaver's Ratio

Worksheet K

Calculation of Beaver's Ratio

Cliffs Erie, LLC


2010

How does this ratio compare with the Beaver's Ratio for other firms in the same business?


-$3,994,792

$0

Total Debt

No, use 2010. It is more representative of a

'typical' year's ratio.*

Is the most recent year typical of the

three years?


significant asset sales, which was a one time ballon payment. 2009-2010 are more representative of

a typical year; however, they also include an income stream that no longer exists following the final



Is the Beaver's Ratio greater than 0.2?

Is the Beaver's Ratio less than 0.15?

BR = CF ÷ TD

Where: Beaver's Ratio

Cash Flow

Is the Beaver's Ratio between 0.2 and 0.15?

Considerations:

-$3,994,792

$0

S-44

DER =

LTL =

OE =

2010 2009

LTL $14,986,879 $13,444,532 (1)

OE $8,080,317 $16,287,671 (2)

DER [(1) / (2)] 1.85 0.83 (3)

Section

3.2b

3.2b

3.2b

3.2.b

3.2.b

3.2.b

3-10


the three years?

No, use 2010. It is more representative of a 'typical' year's

ratio.*


significant asset sales, which was a one time ballon payment. 2009-2010 are more representative of a

typical year; however, they also include an income stream that no longer exists following the final


Impact of Special Sources of Funding


3-10

3-11

3-11

3-11

Component

Leverage (overview)

Debt/Equity Ratio

Owner Equity

Interpretation of Debt/Equity Ratio

Comparison to Similar Dischargers

Page

Debt/Equity RatioLong-Term Liabilities (long-term debt such as bonds, debentures,

and bank debt, and all other noncurrent liabilities such as deferred

income taxes)Owner Equity (the difference between total assets and total liabilities,

2011

$15,724,177

$12,157,638

1.29

3-10

How does the debt to equity ratio (3) compare with the ratio for firms in the same business?


Worksheet L

Debt to Equity Ratio

Cliffs Erie, LLC


Considerations:

DER = LTL ÷ OE

Where:

S-44

EntityAnnual Pollution

Control Costs

Most Recently

Completed Fiscal

Year

Profit Rate

Without Pollution

Controls

Profit Rate With

Pollution Controls

Percent Change in

Profit Rate Due to

Pollution Controls

Cliffs Erie, LLC $2,166,000 2011 0.00 0.00 0.0%

Current Ratio

(Liquidity)

Beaver's Ratio

(Solvency)

Debt/Equity Ratio

(Leverage)

0.00 1.09 0.00 1.85

Section Page

3.2 3-3

3.2.a 3-6

3.2.b 3-7

3.3 3-11

Figure 3-1 3-13

Primary Measure:

Profit Test

(Profitability)

Secondary Measures

Cliffs Erie, LLC

Typical Value for Facilities/Firms in

Similar Lines of Business


Primary Measure: Profit Test1

Note: 1. Based on the most recently completed fiscal year (2011)

Interpreting the Results

Measuring Substantial Impacts (flowchart)

Cliffs Erie, LLC


Component

Financial Impact Analysis (overview)

Primary Measure (profitability)

Secondary Measures

Note: 2. Based on a typical fiscal year (2010)

Summarize and discuss financial circumstances with and without pollution controls, and compare primary and secondary

measures with the corresponding typical values for facilities/firms in similar lines of business.


Comparison with Typical Values for Facilities/Firms in Similar Line of Business2

Entity

S-44

Cliff Erie's Hoyt Lakes Mine Area is located

north of the City of Hoyt Lakes in Sections 1,

2, 11-16, and 21-28 of Township 59 North,

Range 14W, Saint Louis County, Minnesota.

Employees, contractors and suppliers live in

the nearby community as well as other

communities on the Iron Range, including

Aurora, Biwabik, Gilbert, McKinley, Eveleth,

and Virginia, and in unincorporated areas of

St. Louis County.

(1)


7.9%* (3)

Less than 10 (4)

(5)





(10)


Total number of households in affected

community (#)

Percent of population below the poverty line in

affected community (%)



Expected expenditures on social services due

to job losses in the affected community ($)

Current total tax revenues in the affected

community ($)

Median household income in affected

community ($)

Worksheet N

Factors to Consider in Making a Determination of Widespread Social and Economic

Impacts

Cliffs Erie, LLC

Define the affected community in this case;

what areas are included

Current unemployment rate in affected

community ([Current # of persons collecting

unemployment in affected community / labor

force in affected community], or, if unavailable,

current unemployment rate provided in Tab 9.)

(%)

Current national unemployment rate (%)


collect unemployment in affected community

due to compliance with water quality standards

(#)

Expected unemployment rate in the affected

community after compliance with water quality

standards ([Current # of persons collecting

unemployment in affected community + (4)] /

labor force in affected community) (%)

S-44

(12)

(13)

5.8%* (14)

(15)

(16)

$8,312,488,593** (17)

(18)


Affected Community 4.1 4-1

Unemployment Rates 4.3 4-3

Labor Force 4.3 4-3

Expenditures on Social

Services4.3

4-4

Tax Revenues 4.3 4-3

Multiplier Effect 4.4 4-5Consideration of Economic

Benefits of Clean Water 4.5 4-6

Other current community characteristics or anticipated impacts that are not listed in the worksheet:


** 2005 Human Services Enrollment and Services Spending

(http://www.auditor.leg.state.mn.us/ped/pedrep/hsa.pdf; accessed December 3, 2012)

Notes:* Bureau of Labor Statistics seasonally adjusted value for October 2012 (http://data.bls.gov, accessed

December 3, 2012)

Expected statewide expenditures on social

services due to job losses ($)

Tax revenues paid by the private entity to the


(Worksheet N cont.)

Tax revenues paid by the private entity as a

percentage of the affected community's total

tax revenues (%) *

Current statewide unemployment rate


unemployment in state] / labor force in state],

or, if unavailable, current statewide

unemployment rate provided in Tab 9.) (%)


collect unemployment in the state due to

compliance with water quality standards (#)

Expected statewide unemployment rate, after

compliance with water quality standards


unemployment in state + (15)]/labor force in

state)


state ($)

S-44

Table N-1: Unemployment rate in affected community

Impact area Unemployment

Rate (%) Source

Aurora N/A

Biwabik 4.4 U.S. Census American Factfinder 2010 ACS 5-yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Eveleth 11.9 U.S. Census American Factfinder 2010 ACS 5-yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Gilbert 7.6 U.S. Census American Factfinder 2010 ACS 5-yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Hoyt Lakes 16.3 U.S. Census American Factfinder 2010 ACS 5-yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

McKinley 15 U.S. Census American Factfinder 2010 ACS 5-yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Town of White N/A

Virginia 10.5 U.S. Census American Factfinder 2010 ACS 5-yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

St. Louis County

6.5 Bureau of Labor Statistics not seasonally adjusted preliminary value for December 2011 (http://data.bls.gov, accessed February 27, 2012)

Minnesota Total

5.7 Bureau of Labor Statistics seasonally adjusted value for December 2012 (http://data.bls.gov, accessed February 27, 2011)

S-44

Table N-2: Median household income in affected community

Impact area

Median Household

Income (2010

Inflation Adjusted Dollars)

Year/Source

Aurora N/A

Biwabik $ 37,500 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Eveleth $ 36,755 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Gilbert $ 40,925 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Hoyt Lakes $ 45,338 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

McKinley $ 27,750 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Town of White N/A

Virginia $ 32,664 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

St. Louis County $ 44,941 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Minnesota Total $ 55,459 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

S-44

Table N-3: Number of households in affected community

Impact area Number of households

Year/Source

Aurora

Biwabik 523 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Eveleth 1,779 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Gilbert 861 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Hoyt Lakes 912 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

McKinley 27 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Town of White

Virginia 4,028 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

St. Louis County 86,561 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Minnesota Total 2,091,548 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

S-44

Table N-4: Percent of population living below poverty level in affected community

Impact area

Percent below poverty level (%)

Year/Source

Aurora

Biwabik 18.7 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Eveleth 18.8 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Gilbert 11.0 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Hoyt Lakes 4.5 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

McKinley 15.9 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Town of White

Virginia 21.2 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

St. Louis County 17.9 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

Minnesota Total 11.6 U.S. Census American Factfinder, 2010 ACS 5 yr estimates (http://factfinder2.census.gov, accessed February 27, 2012)

S-44

Table N-5: Expenditures on social services in affected community

Impact area Social Services Expenditures

Year/Source

Aurora $ 1,414,513


Biwabik $ 1,201,311


Eveleth $ 4,134,077


Gilbert $ 2,087,466


Hoyt Lakes $ 2,620,085


McKinley $ 55,428


Town of White




STATE OFMINNESOTA Office of the State Auditor, Minnesota County Budgets 2010 Summary Budget Data Together With 2009 Revised Summary Budget Data, 2009 revised budget data for current expenditures, (http://www.osa.state.mn.us/Reports/gid/2010/co_Budget/coBudget_10_report.pdf, accessed February 27, 2012)

Minnesota Total $ 8,312,488,593 2005 Human services enrollment and services spending(http://www.auditor.leg.state.mn.us/ped/pedrep/hsa.pdf, accessed February 27, 2012)

S-44

Table N-6: Current total tax revenues in affected community

Impact area 2009 U.S. Dollars Year/Source

Aurora $ 665,617


Biwabik $ 653,040


Eveleth $ 871,281


Gilbert $ 557,802


Hoyt Lakes $ 939,945


McKinley $ 2,242


Town of White N/A




STATE OFMINNESOTA Office of the State Auditor, Minnesota County Budgets 2010 Summary Budget Data Together With 2009 Revised Summary Budget Data, 2009 revised budget data for property taxes and all other taxes, (http://www.osa.state.mn.us/Reports/gid/2010/co_Budget/coBudget_10_report.pdf, accessed February 27, 2012)

Minnesota Total $ 17,726,000,000 FY 2011 Estimate (http://www.mmb.state.mn.us/doc/budget/report-pog/nov11.pdf, accessed February 27,2012)

S-44

Appendix C


S-44

Appendix C


Through the process of developing the Short-Term Mitigation Evaluation and Implementation Plan for

SD033 (Short-Term Plan) and the Long-Term Mitigation Evaluation and Implementation Plan for SD033

(Long-Term Plan), CE has undertaken a comprehensive review of potential treatment technologies to

achieve compliance with water quality standards for the parameters of concern at SD033.

The following potential treatment technologies were screened in development of the Short-Term


Biological Treatment: constructed wetlands, floating wetlands, natural wetlands, biofilters, in-pit

biological treatment, and anaerobic reactors

Chemical Precipitation: barium precipitation, ettringite precipitation (SAVMIN and CESR),

gypsum precipitation, and lime softening

Ion Exchange: Sulf-IX and Sulf-IXC

Membrane Treatment: microfiltration, ultrafiltration, nanofiltration, reverse osmosis, and

electrodialysis reversal

The following potential treatment technologies were screened in development of the Long-Term


Floating Wetland Treatment


Ion Exchange (Sulf-IX or Sulf-IXC)

Reverse Osmosis

Nanofiltration

Source Isolation

Natural Attenuation

Enhanced Natural Attenuation through Nutrient Addition in the Pits

Conventional Lime Softening

Passive Softening

Aquatic System and Surface Flow Wetlands

Based on the results of these screenings, the following potential treatment technologies were evaluated

further based on effectiveness, implementability, long-term performance, and cost:

S-44

Floating Wetland

o Summary of review: After review of potential biological treatment alternatives during

development of the Short-Term Plan, a floating wetland system was selected for

further evaluation, as described in Section 5.1.1 of the Short-Term Plan. Section 5.2

of the Short-Term Plan includes a description of the floating wetland system, related



the floating wetland system was selected for further evaluation, as described in

Sections 4.1.1 and 5.5 of the Long-Term Plan. Section 6.0 of the Long-Term Plan

includes discussion of the effectiveness, implementability, long-term performance,

and cost of a floating wetland system. Section 7.0 of the Long-Term Plan

recommended further evaluation a floating wetland system through pre-

implementation study efforts and pilot-scale testing.



Section 5.1.1: Biological Treatment

Section 5.2: Floating Wetlands




Section 5.5: Floating Wetland Treatment





Treatment/Mitigation Alternatives at SD033

Lime Softening

o Summary of review: After review of potential chemical precipitation treatment

alternatives during development of the Short-Term Plan, no chemical precipitation

alternative was deemed suitable for independent consideration due to potential

limitations, as described in Section 5.1.2 of the Short-Term Plan. However, lime

softening was selected for further consideration and potential evaluation with other

treatment technologies as either a pre- or post-treatment option. Further details

S-44

related to the potential applications and limitations of lime softening are included in

Sections 4.2.4 and 4.2.5 of the Long-Term Plan.

Further details related to this review:


Section 5.1.2: Chemical Precipitation



Section 4.2.4: Conventional Softening

Section 4.2.5: Passive Softening



Ion Exchange (Sulf-IX)

o Summary of review: After review of potential ion exchange treatment alternatives

during development of the Short-Term Plan, BioteQ Environmental Technologies,

Inc.’s proprietary Sulf-IX ion exchange process was selected for further evaluation,

as described in Section 5.1.3 of the Short-Term Plan. Section 5.3 of the Short-Term

Plan includes a description of the Sulf-IX ion exchange process, related



the Sulf-IX ion exchange system was not selected for further evaluation due primarily

to concerns related to implementability, as described in Section 4.1.3 of the Long-

Term Plan.



Section 5.1.3: Ion Exchange

Section 5.3: Ion Exchange



Section 4.1.3: Ion-Exchange



Membrane Treatment (Reverse Osmosis or Nanofiltration)

S-44

o Summary of review: After review of potential membrane treatment alternatives

during development of the Short-Term Plan, reverse osmosis was selected for further

evaluation, as described in Section 5.1.4 of the Short-Term Plan. Section 5.4 of the

Short-Term Plan includes a description of reverse osmosis, related implementation

considerations, a preliminary cost estimate, and a hypothesis of the expected outcome

of further evaluation. During development of the Long-Term Plan, membrane

treatment by reverse osmosis or nanofiltration was not selected for further evaluation

due primarily to concerns related to implementability, as described in Section 4.1.4 of

the Long-Term Plan. However, in the MPCA’s July 25, 2012 letter to CE, “RE: April

6, 2010, Cliffs Erie, LLC Consent Decree, Review of Long Term Plans – SD033 and

SD026”, the MPCA indicated that, further evaluation of an active treatment

technology, such as membrane treatment, would be required; therefore a Work Plan

for Investigation of Membrane Treatment at SD033 was submitted to the MPCA in

September 2012. The work plan includes a proposed schedule and protocol for

conducting a pilot-scale test including evaluation of reverse osmosis technology and

evaluation of associated concentrate (brine) management approaches and the use of

concentrate volume reduction technologies.



Section 5.1.4: Reverse Osmosis

Section 5.4: Reverse Osmosis



Section 4.1.4: Reverse Osmosis and Nanofiltration



Work Plan for Investigation of Membrane Treatment at SD033:

Section 1.2: Selection of Reverse Osmosis as Active Treatment

Technology and Testing Approach

Source Isolation


long-term implementation during development of the Long-Term Plan, source

isolation (such as covering of stockpiles in Area 5 North to isolate stockpiled rock)

S-44

was identified for further evaluation, as described in Sections 4.2.1 and 5.1 of the

Long-Term Plan. Section 6.0 of the Long-Term Plan includes discussion of the

effectiveness, implementability, long-term performance, and cost of source isolation.

Section 7.0 of the Long-Term Plan recommended further evaluation of source

isolation through pre-implementation study efforts and pilot-scale testing.



Section 4.2.1: Source Isolation

Section 5.1: Source Isolation



Section 7.1.1: Source Isolation



Natural Attenuation


long-term implementation during development of the Long-Term Plan, it was

determined that natural attenuation would not be sufficient to address sulfate loads

and thus that only enhanced natural attenuation would be evaluated further, as

described in Sections 4.2.2 and 5.2 of the Long-Term Plan.



Section 4.2.2: Natural Attenuation

Section 5.2: Natural Attenuation



Enhanced Natural Attenuation


long-term implementation during development of the Long-Term Plan, enhanced

natural attenuation through nutrient addition in pits was identified for further

evaluation, most likely in combination with other treatment technologies, as

described in Sections 4.2.3 and 5.3 of the Long-Term Plan. Section 6.0 of the Long-

S-44

Term Plan includes discussion of the effectiveness, implementability, long-term

performance, and cost of enhanced natural attenuation. Section 7.0 of the Long-Term

Plan recommended further evaluation of enhanced natural attenuation as a portion of

an overall solution during pre-implementation study efforts.



Section 4.2.3: Enhanced Natural Attenuation through Nutrient

Addition in Pits

Section 5.3: Enhanced Natural Attenuation







long-term implementation during development of the Long-Term Plan, a permeable

reactive barrier (PRB) was identified for further evaluation, as described in Sections

4.1.2 and 5.4 of the Long-Term Plan. Section 6.0 of the Long-Term Plan includes

discussion of the effectiveness, implementability, long-term performance, and cost of

a PRB. Section 7.0 of the Long-Term Plan recommended further evaluation a PRB.

Additionally, in CE’s September 25, 2012 letter to the MPCA, “RE: Consent Decree

in MPCA v. Cliffs Erie, Court File No. 62CV-IO-2807 – Response to July 25, 2012

MPCA Letter (“Review of Long Term Plans – SD033 and SD026”)”, CE proposed to

conduct further evaluation of a PRB.



Section 4.1.2: Permeable Reactive Barrier (PRB)

Section 5.4: Permeable Reactive Barrier (PRB)



Section 7.1.3: PRB Site Evaluation

S-44



Surface-Flow Wetland/Lagoon


long-term implementation during development of the Long-Term Plan, a surface-flow

wetland system was identified for further evaluation in tandem with a floating

wetland or PRB, as described in Sections 4.2.6 and 5.6 of the Long-Term Plan.

Section 6.0 of the Long-Term Plan includes discussion of the effectiveness,

implementability, long-term performance, and cost of a surface-flow wetland system.

Section 7.0 of the Long-Term Plan recommended potential further evaluation of a

surface-flow wetland system based on the results of floating wetland and source

isolation studies and testing.



Section 4.2.6: Aquatic System and Surface Flow Wetlands

Section 5.6: Aquatic System and Surface Flow Wetland





S-44

Presented below are water quality standards that are in effect for Clean Water Act purposes.

EPA is posting these standards as a convenience to users and has made a reasonable effort to assure their accuracy. Additionally, EPA has made a reasonable effort to identify parts of the standards that are not approved, disapproved, or are otherwise not in effect for Clean Water Act purposes.

S-45

Grand Portage Reservation Water Quality Standards Final version as of May 24, 2005, with revised criteria adopted August 8, 2006, and appended variance from mercury criteria Page 1

GRAND PORTAGE RESERVATION

WATER QUALITY STANDARDS

S-45

Grand Portage Reservation Water Quality Standards Final version as of May 24, 2005, with revised criteria adopted August 8, 2006, and appended variance from mercury criteria Page 2 TABLE OF CONTENTS

page INTRODUCTION ..................................................................................………. 4 PURPOSE .............................................................................................……….. 4 APPLICABILTY .................................................................................……… 5 DEFINITIONS ..................................................................................………………… 5 DESIGNATED USES ...................................................................………………… 9

A. PUBLIC WATER SUPPLY ..............................................…… 9

B. AQUATIC LIFE ..........................................................……. 9

1. COLD WATER FISHERIES ......................………….. 9

2. WARM WATER FISHERIES ......................………….. 9

3. SUBSISTENCE FISHERIES ......................…………… 10

4. WETLANDS ..............................................…………….. 10

C. WILDLIFE ......................................................................……… 10

D. RECREATION ..........................................................……………… 10 1. PRIMARY CONTACT ...................................…………… 10

E. CULTURAL ......................................................................………. 10

1. WILD RICE ..........................................................……… 10

2. AESTHETICS ..............................................……………… 10

F. FORESTRY WATER SUPPLY ..................................…………….. 11 G. INDUSTRIAL WATER SUPPLY ..................................……. 11

H. NAVIGATION .......................................................…………………. 11

ANTIDEGRADATION POLICY .....................................................………….. 14 IMPLEMENTATION OF ANTIDEGRADATION POLICY ..........……………. 14

S-45

Grand Portage Reservation Water Quality Standards Final version as of May 24, 2005, with revised criteria adopted August 8, 2006, and appended variance from mercury criteria Page 3 TABLE OF CONTENTS

page IMPLEMENTATION OF WATER QUALITY STANDARDS ..........……………. 16 SAMPLING AND ANALYSIS ........................................................…………………. 17 ENVIRONMENTAL DEPARTMENT,

DUTIES AND RESPONSIBILITIES .................................………………. 17 GENERAL STANDARDS ....................................................................………….. 18

NUMERIC CRITERIA AND METHODOLOGY.........................................…………… 21

1. NATURAL WATER QUALITY ............................................ 21

2. ADDITIVITY GENERAL .....................……………………………… 21

3. RISK LEVELS AND ADDITIVITY………...........…………………… 22 4. SITE-SPECIFIC WATER QUALITY CRITERIA ……………………… 22 5. VARIANCES FROM WATER QUALITY STANDARDS ……………. 23 6. STANDARDS THAT VARY WITH TOTAL HARDNESS …………… 23 7. STANDARD THAT VARIES WITH pH ……………………………… 23

8. CONVERSION FACTORS FOR TRANSFORMING

TOTAL METALS TO DISSOLVED METALS ……………………… 24

9. METHODOLOGY TO DEVELOP OR REVISE WATER QUALITY CRITERIA ………………………………………… 24

ENFORCEMENT AND CIVIL PENALTIES ..................................………………… 27 TABLES TABLE 1. DESIGNATED USES ……………………………………………….. 12 TABLE 2. CONVERSION FACTORS ……………………………………………….. 24 TABLE 3. NUMERIC CRITERIA ……………………………………………….. 26

S-45


GRAND PORTAGE RESERVATION WATER QUALITY STANDARDS

I. INTRODUCTION. The Grand Portage Band of Chippewa is a sovereign Indian nation, federally recognized and organized under the Indian Reorganization Act of June 18, 1934, 48 Stat. 984 and 25 U.S.C. Section 476, as amended. The governing body of the Grand Portage Band of Chippewa, the Reservation Tribal Council, has the inherent authority to regulate activities and natural resources of the Reservation. The Reservation Tribal Council does hereby enact the following water quality standards which apply to all waters upon, under, flowing through or bordering upon the Grand Portage Reservation including the shoreline waters of Lake Superior within the Grand Portage Zone. The Grand Portage Zone is described as follows: That part of Lake Superior begining at the intersection of the west line of Range 5 East and the shoreline of Lake Superior, thence to a point in Lake Superior one half mile south as measured along the southerly extension of the west line of Range 5 East, thence northeasterly to a point on the Minnesota-Michigan boundary line at latitude 47 degrees, 58 minutes, 40 seconds, thence northerly along the Minnesota-Michigan boundary line to a point which forms the common boundary between Minnesota, Michigan and the Province of Ontario, Canada, and thence westerly along the International Boundary line to the confluence of the Pigeon River. II. PURPOSE. The purposes of the Grand Portage Reservation water quality standards are: 1. To designate uses for which the waters of the Grand Portage Reservation will be

protected; 2. To prescribe water quality criteria imposed in order to attain and sustain the designated

uses; 3. To prevent degradation of existing water quality; 4. To promote and protect the health and welfare, the political integrity, and the economic

well-being of the Grand Portage Reservation, its members and all residents of the Reservation, and;

5. To protect and enhance the propagation of fish and other aquatic life, wildlife, and

recreation in and on the water.

S-45

Grand Portage Reservation Water Quality Standards Final version as of May 24, 2005, with revised criteria adopted August 8, 2006, and appended variance from mercury criteria Page 5 III. APPLICABILITY. 1. These standards apply to all waters of the Grand Portage Reservation. Waters of the

Grand Portage Reservation are defined as all waters, including wetlands, upon, under, flowing through or bordering upon the Grand Portage Reservation.

In addition, these water quality standards shall provide the basis for all water management decisions affecting water quality within the Reservation boundaries, including, but not limited to point-source permitting, non-point source controls and the physical alterations of water bodies including wetlands.

2. It is the intent of the Band that, where feasible, water quality criteria necessary to protect

designated uses must be met at all times and at all locations in all waters of the Grand Portage Reservation.

3. Water quality standards will be the basis for managing discharges attributable to point

and non-point sources of pollution. Water quality standards are not used to control, and are not invalidated by, natural background phenomena or acts of God.

4. The Grand Portage Reservation water quality standards may be revised from time to time,

as the need arises, or as the result of updated scientific information, at a minimum will be reviewed every three years.

IV. DEFINITIONS. Acute: Stimulus severe enough to rapidly induce an effect; in aquatic tests, an effect observed in 96 hours or less typically is considered acute. When referring to aquatic toxicology or human health, an acute effect is not always measured in terms of lethality. Acute Toxicity: Acute toxicity can be any “adverse effect,” which is defined as debilitating, harmful or toxic to the normal functions of the organism. Acute exposure occurs within any short observation period which begins when the exposure begins and may extend beyond the exposure period, and usually does not constitute a substantial portion of the life span of an organism. Ambient: Completely surrounding; encompassing; circulating. Antidegradation Policy: A policy that ensures that water quality is protected in order to maintain existing uses, high quality waters, and outstanding national resource waters. Background Levels: The biological, chemical, and physical conditions of a water body, upstream from the point or non-point source discharge under consideration.

S-45

Grand Portage Reservation Water Quality Standards Final version as of May 24, 2005, with revised criteria adopted August 8, 2006, and appended variance from mercury criteria Page 6 Best Management Practices: Methods that have been determined to be the most effective, practical means of preventing or reducing pollution from non-point sources. Bioaccumulation Factor (BAF): The ratio (in L/Kg) of a substance’s concentration in tissue of an aquatic organism to its concentration in the ambient water, in situations where both the organism and its food are exposed and the ratio does not change substantially over time. Biological Integrity: The presence of a biological community that at a site that is indistinguishable in either structure or function from the biological community that would be expected absent anthropogenic impacts as determined based on a defined reference condition appropriate to the ecoregion in which the water body is located. Carcinogenic: A substance which causes an increased incidence of benign or malignant neoplasms, or substantially decreases the time to develop neoplasms, in animals or humans. Criterion Continuous Concentration (CCC): The highest water concentration of a toxicant to which organisms can be exposed indefinitely without causing chronic toxicity. Chronic Toxicity: Concurrent and delayed adverse effects that occur as a result of chronic exposure. Clean Water Act: The Federal Pollution Control Act (Public Law 92-500), as amended (33 U.S.C. 1251 et seq.). Designated Uses: Those uses set forth in these water quality standards for each water body or segment whether or not they are being attained. Examples of designated uses can include coldwater fisheries and public water supply. Dissolved Oxygen: The amount of oxygen dissolved in water or the amount of oxygen available for biochemical activity in water, commonly expressed as a concentration in milligrams per liter. Escherichia coli (E. Coli): A specific bacterial species occurring as part of the normal intestinal flora in vertebrates. Also known as Colon bacillus. Effluent: Wastewater, treated or untreated that flows out of a treatment plant, sewer, or industrial outfall. Epilimnion: The layer of water that overlies the thermocline of a lake and that is subject to the action of wind. Existing Uses: Uses actually attained in the water body on or after November 28, 1975, whether or not they are included in the water quality standards.

S-45

Grand Portage Reservation Water Quality Standards Final version as of May 24, 2005, with revised criteria adopted August 8, 2006, and appended variance from mercury criteria Page 7 Grand Portage Zone: The area in the Minnesota waters of Lake Superior bounded by a line as follows: beginning at the mouth of the Reservation River, thence due south to the Minnesota boundary in Lake Superior, thence northeastward along such Minnesota boundary to the Canadian boundary in Lake Superior, thence westward along such Canadian boundary to the shore of lake Superior, thence southwestward along the shore of Lake Superior to the point of beginning (See Cooperative Agreement Between the Grand Portage Band of Chippewa and the Minnesota Pollution Control Agency (July 1996)). High Quality Waters: Surface waters of the Reservation in which, on a parameter by parameter basis, the quality of water exceeds levels necessary to support the propagation of fish, shellfish, wildlife and recreation in and on the water. Human Health Criteria: Criteria adopted by the Tribe for the purpose of protecting human beings from adverse health effects due to consumption of contaminated water and fish. Indigenous: Originating in, and characterizing a particular region or country; native; innate; inherent. Milligrams per Liter (mg/L): The concentration at which one milligram is contained in a volume of one liter; one milligram per liter is equivalent to one part per million (ppm) at unit density. Narrative Criterion: Narrative statements representing a quality of water that supports a particular use. When criteria are met water quality will generally protect the designated use. New or Increased Discharge: Any building, structure, facility, or installation from which there is or may be a “a discharge of pollutants”, as defined in the Code of Federal Regulations, title 40, section 122.2, to surface waters of the Reservation, the construction of which commenced after July 16, 1996. Non-point Source: A source of pollution that is not a discernible, confined and discrete conveyance; a diffuse source that flows across natural or manmade surfaces, such as run-off from agricultural, construction, mining or silvicultural activities or from urban areas. NTU: Nephelometric Turbidity Units; a measure of turbidity in water. Nutrient: A chemical taken in by organisms and used in organic synthesis. Outstanding Tribal Resource Waters - Prohibited (OTRW-P): Those waters of the highest quality that are protected for uniqueness or ecological sensitivity. Waters may be classified as OTRW-Protected because of exceptional cultural, aesthetic, recreational or ecological significance, as determined by the Reservation Tribal Council. The antidegradation section of

S-45

Grand Portage Reservation Water Quality Standards Final version as of May 24, 2005, with revised criteria adopted August 8, 2006, and appended variance from mercury criteria Page 8 the standards also states that no pollutants may be discharged from point sources to a reservation water body assigned this provision. Outstanding Tribal Resource Waters - Restricted (OTRW-R): All waters of the Reservation, except those portions designated as OTRW-Prohibited. pH: The negative logarithm of the effective hydrogen ion concentration in gram equivalents per liter; a measure of the acidity or alkalinity of a solution, increasing with increasing alkalinity and decreasing with increasing acidity. Point Source: Any discernible, confined and discrete conveyance from which pollutants are or may be discharged into a water body. Primary Contact Recreational: Activities where a person would have direct contact with the water to the point of complete submergence, including but not limited to skin diving, swimming, and water skiing. Public Water Supply: A stream, river, lake or impoundment specifically classified by the Reservation Tribal Council as suitable to provide an adequate supply of drinking water for the continuation of the health and well-being of the residents of the Grand Portage Reservation. Reservation Tribal Council (RTC): The governing body of the Grand Portage Band of Chippewa. Secondary Contact Recreational: The recreational use of a stream, river, lake or impoundment in which contact with the water may, but need not, occur and in which the probability of ingesting water is minimal; examples are fishing and boating. Toxicity: State or degree of being toxic or poisonous; lethal or sub lethal adverse effects on organisms, due to exposure to toxic materials. Tribe: The Grand Portage Band of Chippewa. Turbidity: (1) A measure of the amount of suspended material, particles, or sediments that cause light traveling through a water column to scatter. (2) The clarity of the water expressed as nephelometric turbidity units (NTU) and measured with a calibrated turbidimeter. Waters of the Reservation: Any accumulation of water, surface or underground, natural or artificial, public or private, or parts thereof which are wholly or partially within, flow through, or border upon the Grand Portage Reservation; including but not limited to lakes, streams and wetlands. Wetland: Those areas that have a predominance of hydric soils, are inundated or saturated by

S-45

Grand Portage Reservation Water Quality Standards Final version as of May 24, 2005, with revised criteria adopted August 8, 2006, and appended variance from mercury criteria Page 9 surface or ground water at a frequency and duration to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soils. “Normal circumstances” refers to the soil and hydrologic conditions normally present, without regard to whether the vegetation has been removed or whether the lands have been otherwise modified/manipulated by human activity. Wild Rice Areas: A stream, river, lake, or impoundment, or portion thereof, presently has or historically had the potential to sustain the growth of wild rice (also known as Zizania palustris or manoomin). V. DESIGNATED USES. Waters of the Reservation are assigned designated uses to serve the purposes of the Clean Water Act, as defined at sections 101(a)(2) and 303(c) which means that water quality standards should provide, wherever attainable, water quality for the protection of fish, shellfish, and wildlife, recreation in and on the water, as well as considering the use and value of waters for public water supplies, industrial purposes and navigation. Certain existing uses are considered to be covered by several additional special designated uses for tribal cultural activities.

Designated uses are assigned to individual water bodies in order to protect water quality appropriate for each use. Some waters of the Reservation may have natural ambient water quality containing concentrations of parameters that exceed water quality criteria necessary for the protection of a designated use. Natural ambient water quality is defined as the quality in absence of human caused additions of a substance; and shall be determined by water quality monitoring. Designated uses will not be used to control, and are not invalidated by, natural ambient water quality. A. PUBLIC WATER SUPPLY - a stream, river, lake or impoundment specifically classified

by the Grand Portage Reservation Tribal Council as suitable to provide an adequate supply of drinking water for the continuation of the health and well-being of the residents of the Grand Portage Reservation. These are waters that with conventional treatment will be suitable for human intake and meet federal regulations for drinking water.

B. AQUATIC LIFE

1. Cold Water Fisheries - a stream, river, lake or impoundment where water temperature, habitat and other characteristics are suitable for support and propagation of cold water fish and other aquatic life, or serve as a spawning or nursery area for cold water fish species. Examples of coldwater fish include brook trout, rainbow trout, and lake trout.

2. Warm Water Fisheries - a stream, river, lake or impoundment where water

temperature, habitat and other characteristics are suitable for support and

S-45


propagation of warm water fish and other aquatic life, or serving as a spawning or nursery area for warm water fish species. Examples of warm water fish species include large mouth bass and walleyed pike.

3. Subsistence Fishing (Netting Area) - that portion of Lake Superior referred to as

the Grand Portage Zone, including Grand Portage Bay, necessary to provide a sufficient diet of fish in order to sustain a healthy, on-Reservation population.

4. Wetland - an area that will be protected and maintained for some of the following

uses: maintaining biological diversity, preserving wildlife habitat, providing recreational activities, erosion control, groundwater recharge, low flow augmentation, storm water retention, and prevention of stream sedimentation.

C. WILDLIFE. - All surface waters capable of providing a water supply and vegetative

habitat for the support and propagation of all wildlife located within the Grand Portage area.

D. RECREATION

Primary Contact Recreational - the recreational use of a stream, river, lake or impoundment involving prolonged contact and the possibility of ingesting water in quantities sufficient to pose a health hazard; examples are swimming and water skiing.

1. Lake Superior Coastal Waters - high intensity use: Great Lakes coastal

waters public beaches where the majority of people swim due to the close proximity to the village, exceptionally clear water, and cobble or sand substrates.

2. Inland waters – moderate intensity use: Inland rivers or lakes with

moderate swimming use due to remote location, dense aquatic vegetation, and waters that are mildly stained.

3. Inland waters – infrequent use: 1) Remote intermittent streams and

streams surrounded by sedge meadows; and 2) inland bogs, wetlands and shallow lakes surrounded by floating sedge and peat mats where swimming is not an existing use due to highly stained waters and deep mucky substrates that create dangerous conditions for swimming.

E. CULTURAL

1. Wild Rice Areas - a stream, river, lake, wetland or impoundment, or portion thereof, presently, historically or with the potential to be vegetated with wild rice.

S-45


2. Aesthetics - a stream, river, lake, wetland or impoundment, with an uncharacteristic beauty or which represents the traditional value system of the Grand Portage Band of Chippewa, as determined by the Grand Portage Reservation Water Resources Board.

F. FORESTRY WATER SUPPLY - all waters of the Reservation shall be of sufficient

quality for use in forestry applications. G. INDUSTRIAL WATER SUPPLY - all waters of the Reservation shall be of sufficient

quality to be used as a water supply for commercial processes. H. NAVIGATION - all waters of the Reservation shall be of sufficient quality for use in

navigation.

S-45

Grand Portage Reservation Water Quality Standards Final version as of May 24, 2005, with revised criteria adopted August 8, 2006, and appended variance from mercury criteria Page 12 Table 1. Designated Uses

NAME

TOWNSHIP

RANGE

SECTION

DESIGNATED USES

LAKES:

CENTER LAKE

T 63 N

R 5 E

11

B1, B4, C, D3, E1, F, G, H

CHEVANS LAKE

T 64 N

R 5 E

35

B2, B4, C, D3, F, G, H

CUFFS LAKE

T 63 N

R 5 E

12 & 13

B2, B4, C, D3, E1, F, G, H

DUTCHMAN LAKE

T 63 N

R 6 E

6 & 7

B2, B4, C, D3, F, G, H

HELMER/ NELSON POND

T 63 N

R 5 E

13

B2, B4, C, D3, E1, F, G, H

LITTLE LAKE

T 63 N

R 6 E

3

B1, B4, C, D3, F, G, H

LOON LAKE

T 63 N

R 5 E

4

B2, B4, C, D3, E1, F, G, H

MOUNT MAUD LAKE

T 63 N

R 5 E

1

B2, B4, C, D3, E1, F, G, H

NORTH LAKE

T 63 N

R 5 E

8 & 9

B2, B4, C, D3, E1, F, G, H

SPECKLED TROUT LAKE

T 63 N

R 5 E

7 & 8

B1, B2, C, D2, F, G, H

SWAMP LAKE

T 63 N

R 4 E R 5 E

1 & 12 6 & 7

B1, B4, C, D2, E1, F, G, H

SWEDE LAKE

T 64 N

R 5 E

16 & 17

B2, B4, C, D3, F, G, H

TAYLOR LAKE

T 63 N

R 5 E

16 & 17

B1, B4, C, D2, D2, F, G, H

TEAL LAKE

T 64 N

R 6 E

27 & 34

B2, B4, C, D3, D2, E1, F, G, H

TURTLE LAKE

T 63 N

R 5 E

16

B2, B4, C, D2, F, G, H

UNNAMED LAKE

T 63 N

R 5 E

16

B2, B4, C, D3, F, G, H

CREEKS:

GRAND PORTAGE CREEK

T 63 N T 64 N

R 6 E R 6 E

4, 5, 6 31, 32, 33

B1, C, D1, D2, F, G, H

HOLLOW ROCK CREEK

T 63 N

R 5 E

9, 10, 14, 15, 16, 23, 24, 25

B1, C, D1, D2, F, G, H

RED ROCK CREEK

T 63 N

R 5 E

21, 22, 26, 27, 28, 35

B1, C, D1, D2, F, G, H

S-45


NAME

TOWNSHIP

RANGE

SECTION

DESIGNATED USES

RIVERS:

PIGEON RIVER

T 64 N

R 4 E R 5 E R 6 E R 7 E

25 &36 13, 14, 20, 21, 22, 29, 30, 31 18, 19, 20, 21, 22, 23, 24, 26, 27 19, 30

B1, B2, C, D2, E1, F, G, H

RESERVATION RIVER

T 62 N T 63 N

R 5 E R 5 E

6 7, 18, 19, 30, 31

B1, C, D2, F, G, H

LAKE SUPERIOR BAYS:

CANNONBALL BAY

T 62 N T 63 N

R 5 E

4, 5, 6 33, 34, 35

B1, B3, C, D1, F, G, H

CLARK’S BAY

T 64 N

R 7 E

28, 33, 34

B1, B3, C, D1, F, G, H

DERONDA BAY

T 63 N

R 5 E R 6 E

25 16, 17, 19

B1, B3, C, D1, F, G, H

GRAND PORTAGE BAY

T 63 N

R 6 E

3, 4, 9, 10, 11, 16

B1, B3, C, D1, F, G, H

LITTLE PORTAGE BAY

T 64 N

R 7 E

26

B1, B3, C, D1, F, G, H

MORRISON BAY

T 64 N

R 7 E

32 & 33

B1, B3, C, D1, F, G, H

PIGEON BAY

T 64 N

R 7 E

25, 26, 27, 28

B1, C, D1, F, G, H

WAUSWAUGONING BAY

T 63 N, T 64 N

R 6 E

2, 11, 25, 30, 31, 35, 36

A, B1, C, D1, E2, F, G, H

OTHER:

WETLANDS

B4, C, D3, F, G, H

S-45


VI. ANTIDEGRADATION POLICY.

Introduction: The Tribe’s existence has been dependent on the ability of the land and waters to provide natural resources for consumption, subsistence, cultural preservation, religious practice and sustainable economic development. Areas within the Reservation serve as a refuge for Tribal members to continue to practice a life that exemplifies sustainable economic development, and that preserves the resources critical to cultural integrity and survival of the Tribe. The following Antidegradation policy will be applied to waters of the Reservation in order to maintain adequate water quality to support these functions.

Protection of Existing Uses: Existing in-stream uses, as defined pursuant to 40 CFR 131, and the level of water quality necessary to protect existing uses shall be maintained and protected. No further water quality degradation that would interfere with or become injurious to existing uses is allowable.

Protection of High Quality Waters: This antidegradation policy provides for the maintenance and protection of high quality waters through the classification of all waters within the exterior boundaries of the Grand Portage Reservation as Outstanding Tribal Water Resources (OTWR). Two subcategories of OTWR exist as follows:

(a) OTWR-Restricted (lowered water quality may be allowed under limitedcircumstances)

(b) OTWR-Prohibited (Discharges and permanent lowering of water quality areprohibited)

Each of the two subcategories of Grand Portage High Quality Waters has specific implementation procedures as outlined below in Section VII.

VII. IMPLEMENTATION OF ANTIDEGRADATION POLICY.

Cooperative Agreement with Minnesota: The classifications referred to above areintended to comply with terms of a cooperative agreement between the Grand Portage Band and the Minnesota Pollution Control Agency (MPCA), and approved by EPA, dated July 16, 1996. Under this agreement, the Band and MPCA will work cooperatively to plan and administer independently adopted water quality standards and certification programs under the Clean Water Act. A copy of the Agreement can be found in Attachment #1.

Protection of Designated and Existing Uses: For all waters, the Reservation Water Resources Board will ensure that the level of water quality necessary to protect existing uses is maintained. In order to achieve this requirement, and consistent with 40 CFR 131.10, these water quality standards contain use designations which include all existing

S-45


uses. Controls will be established as necessary for point and non-point sources of pollutants to ensure the water quality criteria applicable to the designated uses are achieved and that any designated use of downstream water is protected. Where water quality does not support the designated use of a water body or ambient pollutant concentrations exceed water quality criteria and values applicable to the water body, the Reservation Water Resources Board must not allow a lowering of water quality for the pollutant or pollutants preventing attainment of such uses.

Thermal discharges: In those cases where the potential lowering of water quality is

associated with thermal discharge, the decision to allow such degradation shall be consistent with section 316 of the Clean Water Act (CWA).

Protection of endangered or threatened species: No lowering of water quality will be allowed that would threaten the continued existence of Federally-listed threatened or endangered species or listed critical habitat. Outstanding Tribal Water Resources -Restricted: In Reservation waters classified as restricted discharge areas, or OTWR-Restricted, actions resulting in a lowering of water quality cannot occur unless an antidegradation demonstration has been completed pursuant to the requirements listed below. Antidegradation Demonstration: Any person or entity proposing a new or increased discharge of any pollutant to a water body classified as an Outstanding Tribal Resource Water-Restricted must first provide the Grand Portage Water Resources Board (GPWRB) the following information in support of the proposed new or increased discharge for consideration: 1. Identify any cost effective pollution prevention alternatives and techniques that

are available that would eliminate or substantially reduce the extent to which the new or increased loading will result in lowering of water quality;

2. Identify alternative or enhanced treatment techniques that are available that would

eliminate the lowering of water quality and their costs relative to the cost of treatment necessary to achieve applicable effluent limitations;

3. Identify social or economic development and the benefits to the reservation that

will be foregone if the lowering of water quality is not allowed. The GPWRB will impose the most stringent statutory and regulatory controls for all new and existing point sources, and will impose the best management practices for non-point sources and wetland alterations. A monitoring requirement will be included in any applicable control document for bioaccumulative chemicals of concern known or

S-45


believed to be present in a point or non-point source discharge. Antidegradation Decision: Once the GPWRB determines that the information provided by the entity proposing to lower water quality is administratively complete, and after compliance with public notice requirements consistent with 40 CFR Part 25 and intergovernmental cooperation requirements consistent with 40 CFR Part 25, and due consideration of technical, economic, social and other criteria in the area in which the water is located, may decide to allow lower water quality if it has been adequately demonstrated that there are no prudent and feasible alternatives, and lower water quality is necessary to accommodate important social and economic development on the reservation. In no event may the decision reached under this section allow water quality to be lowered below the minimum level required to fully support existing and designated uses.

2. Outstanding Tribal Water Resources-Prohibited: Discharges will be prohibited in that

portion of Lake Superior north of latitude 47 degrees, 57 minutes, 13 seconds, east of Hat Point, south of the Minnesota-Ontario boundary, and west of the Minnesota-Michigan boundary. These waters will be referred to as OTWR-Prohibited. The following two exceptions are allowed:

• Exemptions for response actions pursuant to the Comprehensive Environmental

Response, Compensation and Liability Act (CERCLA), as amended, or similar Federal or Tribal authorities, undertaken to alleviate a release into the environment of substances which may pose imminent and substantial danger to public health or welfare may be allowed by the Water Resources Board.

• Short-term, temporary (i.e., weeks or months) lowering of water quality from

sources resulting from activities meant to protect public health and welfare, or result in higher water quality in the future such as the maintenance existing roads, culverts, septic systems, boat docks and ramps, may be allowed by the Water Resources Board when there is no prudent and feasible alternative and best management practices have been imposed.

VIII. IMPLEMENTATION OF WATER QUALITY STANDARDS. NPDES PERMITS

NPDES permits shall be issued by EPA to discharge to the waters of the Reservation in a manner consistent with Tribal Water Quality Standards. Chronic Aquatic Life Criteria will be applied as maximum standards not to be exceeded in waters of the Reservation.

Discharges in Tribal waters are PROHIBITED for:

S-45


The portion of the Shoreline Waters described in the 1996 Cooperative Agreement signed by the Grand Portage Band, the Minnesota Pollution Control Agency, and the US EPA, that prohibits any new or expanded discharges within Grand Portage Zone of Lake Superior from north of latitude 47 degrees, 57 minutes, 13 seconds and east of Hat Point.

IX. SAMPLING AND ANALYSIS. 1. Sample collection, preservation and analysis used to determine water quality and to maintain the standards set forth in the Water Quality Standards shall be performed in accordance with procedures prescribed by the latest editions of the following authorities:

a. American Public Health Association, Standard Methods for the Examination of Water and Wastewater;

b. “Methods for Chemical Analysis of Water and Wastes”; and c. “EPA Guidelines Establishing Test Procedures for Analysis of Pollutants”.

2. Bacteriological Surveys: The monthly geometric mean is used in assessing attainment of

standards when at least five samples are collected in a thirty-day period. When less than five samples are collected in a thirty day period, no single sample shall exceed the applicable upper limit for bacterial density set forth in these water quality standards.

3. AVERAGING PERIODS to assess attainment of the standards for the Chronic Aquatic

Life Criteria will be based upon a four day average. Acute Aquatic Life Criteria shall not apply due to the implicit debilitating effects and mortality rates of aquatic organisms over a short period of time. The numeric Chronic Aquatic Life Criteria in these standards will be used in place of Acute Aquatic Life Criteria, and must not be exceeded when averaged over a 1 hr period. Monitoring for the human health and wildlife criteria will be a thirty day average.

X. ENVIRONMENTAL DEPARTMENT, DUTIES AND RESPONSIBILITIES. Acting under authority delegated by the Grand Portage Reservation Water Resources Board established by the Grand Portage Water Resources Ordinance as amended in 2004, the Environmental Department will implement the Grand Portage Water Quality Standards, including the anti-degradation policy, by establishing and maintaining controls on the introduction of pollutants into waters of the Reservation. The Environmental Department will have the following duties and responsibilities: 1. Monitor water quality to assess the effectiveness of pollution controls and to determine

whether water quality standards are being attained; 2. Analyze data to assess impact of effluent(s) on receiving waters, establish standards and

develop approaches for pollution control;

S-45

Grand Portage Reservation Water Quality Standards Final version as of May 24, 2005, with revised criteria adopted August 8, 2006, and appended variance from mercury criteria Page 18 3. Compile information for pollution control discharge permits and determine data

collection methods to be employed in research projects and surveys; 4. Review the adequacy of the existing data base and obtain additional data when required

including; a. Collect water samples from streams, rivers, lakes, processed water or water from

other sources to assess pollution problems;

b. Prepare samples for testing, record data, and prepare summaries for review. 5. Review project operations and coordinate water pollution control activities with other

constituent agencies and other local, state and federal agencies, as appropriate; 6. Encourage voluntary implementation of best management practices to control non-point

sources of pollutants to achieve compliance with the Grand Portage Reservation Water Quality Standards;

7. Require the highest and best degree of wastewater treatment practicable and

commensurate with protecting and maintaining designated uses and existing water quality;

8. Investigate complaints concerning water pollution problems; 9. Ensure compliance with the provisions for public participation required by the Clean

Water Act; 10. Ensure that all dischargers and all projects that have the potential to impact water quality

are in compliance with the Grand Portage Water Quality Standards. XI. GENERAL STANDARDS. The following general water quality criteria will apply to all waters of the Reservation. 1. Waters must be free from suspended and submerged solids or other substances that enter

the waters as a result of human activity and that will settle in the bed of a body of water to form foul smelling or otherwise objectionable deposits, or that will adversely affect aquatic life.

2. Waters must be free from floating debris, oil, scum and other floating materials entering

the waters as a result of human activity in amounts sufficient to be unsightly, adversely affect uses, or cause degradation.

S-45

Grand Portage Reservation Water Quality Standards Final version as of May 24, 2005, with revised criteria adopted August 8, 2006, and appended variance from mercury criteria Page 19 3. Waters must be free from materials entering the waters as a result of human activity

producing color, odor, taste or other conditions in such a degree as to create a nuisance. 4. Waters must be free from nutrients entering the waters as a result of human activity in concentrations that create nuisance growths of aquatic weeds and algae. 5. Waters must be free from substances entering the water as a result of human activity in

concentrations that are toxic or harmful to human, animal, plant or aquatic life.

Toxic substances must not be present in receiving waters in quantities that are toxic to human, animal, plant or aquatic life, or in quantities that interfere with normal propagation, growth and survival of the sensitive aquatic biota.

Where a numeric water quality criterion for a particular pollutant is not specified in these Water Quality Standards, the Water Resources Board will adopt EPA standards for that pollutant until a site-specific criterion for that chemical can be developed. Aquatic life will be as it naturally occurs. Ambient water quality must be sufficient to support life stages of all indigenous species. Aquatic habitat, which includes all waters of the Reservation, will not be degraded. Sediments and aquatic flora and fauna, and the use thereof, must not be impaired or endangered, the species composition will not be altered, and propagation or migration of fish and other aquatic biota normally present must not be hindered by discharge of sewage, industrial waste or other pollutants to the waters.

The biological quality of any given surface water body will be assessed by comparison to the biological integrity of reference conditions which best represent the most natural condition for that surface water body type within the geographic region. The biological quality will be determined by reliable measures of indicative communities of flora and fauna.

6. Waters capable of supporting wild rice will be of sufficient quantity and quality as to

permit the propagation and maintenance of a healthy “wild rice” ecosystem in addition to the associated aquatic life and their habitats.

7. The pH of a stream, lake, bay or river will not be permitted to fluctuate in excess of 0.5

units outside the estimated natural seasonal maximum and minimum as defined by Tribal monitoring data.

8. For waters designated as coldwater fisheries, the dissolved oxygen standard will be a

minimum daily mean concentration of 9.0 mg/l when and where early life stages of cold water fish occur and 6.0 mg/l for all other coldwater aquatic life stages. For waters designated as warm water fisheries, the dissolved oxygen standard will be a minimum

S-45


daily mean concentration of 5.5 mg/l when and where early life stages of warmwater fish occur and 5.0 mg/l for all other warmwater aquatic life stages. Where natural conditions alone create dissolved oxygen concentrations less than 110 percent of the applicable criteria means or minima or both, the minimum acceptable concentration is 90 percent of the natural concentration.

9. Turbidity attributable to other than natural causes must not exceed 5 NTU over natural

conditions as defined by Tribal monitoring data.

10. Sulfates must not exceed 10 mg/l in wild rice habitats. 11. Bacteria criteria in waters protected for primary recreational contact are based on an equation

provided by USEPA. Primary contact recreational use is divided into three subcategories based upon frequency of use. If compliance is based on a monthly geometric mean than at least five samples must been collected in an equally spaced time period over thirty days. When less than five samples have been collected in a thirty-day period, the single sample shall not be exceeded. The following bacteria criteria apply to each subcategory:

(a) For high intensity use of Lake Superior Coastal waters designated as D1, the bacteriological density shall not exceed a monthly geometric mean of 126 Escherichia coli per 100 ml, or a single sample maximum of 235 cfu Escherichia coli /100 ml.

(b) For inland lakes and rivers that are used moderately for swimming due to remote location, dense vegetation, and mildly stained waters, designated as D2, the bacteriological density shall not exceed a monthly geometric mean of 126 Escherichia coli per 100 ml, or a single sample maximum of 299 cfu Escherichia coli /100 ml.

(c) Intermittent streams and streams surrounded by sedge meadows, shallow inland lakes surrounded by floating sedge and peat mats, wetlands and bogs that are infrequently used for swimming due to highly stained waters and deep mucky substrates that create dangerous conditions for swimming are designated as D3. For these waters the bacteriological density shall not exceed a monthly geometric mean of 206 cfu Escherichia coli per 100 ml, or a single sample maximum of 940 cfu Escherichia coli /100 ml.

12. Concentrations of radioactive materials must not exceed concentrations caused by

naturally occurring materials. 13. Existing mineral quality will not be altered by municipal, industrial and in-stream

activities or other waste discharges so as to interfere with the designated uses for a water body.

14. There will be no material increase in the temperature of Reservation waters other than

natural causes, based upon the average of temperatures taken from mid-depth or three (3) feet (whichever is less) for streams and taken from the surface to the bottom or surface to the bottom of the epilimnion if a lake is stratified.

S-45


The normal daily and seasonal variations present before the addition of heat, from other than natural sources, must be maintained.

In no case will human-introduced heat be permitted when the maximum temperature specified for the water body (68 degrees F for cold water fisheries and 86 degrees F for warm water fisheries) would thereby be exceeded.

XIII. NUMERIC WATER QUALITY CRITERIA AND METHODOLOGY. {GENERAL: If Water Quality Standards are exceeded in waters of the Reservation, it will be considered indicative of a polluted condition that is actually or potentially harmful, detrimental or injurious with respect to the designated uses and will therefore be considered a violation of the Grand Portage Water Quality Standards.} 1. NATURAL WATER QUALITY

The waters of the Reservation may, in a natural condition, have water quality characteristics or chemical concentrations approaching or exceeding the water quality standards. Natural conditions exist where there is no discernable impact from point or non-point source pollutants attributable to human activity or from physical alteration of wetlands. Natural background levels are defined by water quality monitoring. Where water quality monitoring data are not available, background levels can be predicted based on data from a watershed with similar characteristics. Where natural background levels do not exceed applicable standards, the addition of pollutants from human activity and resulting point or non-point source discharges shall be limited such that, in total, the natural background levels and the additions from human activity shall not exceed the standards. When reasonable justification exists to preserve the higher natural quality of a water resource, the Water Resources Board may use the natural background levels that are lower than the applicable site-specific standards to control the addition of the same pollutants from human activity. Where background levels exceeded applicable standards, the background levels may be used as the standards for controlling the addition of the same pollutants from point and non-point source discharges in place of the standards. In the adoption of standards for individual waters of the Reservation, the Water Resources Board will be guided by the standards herein but may make reasonable modifications of the same on the basis of evidence brought forth at a public hearing if it is shown to be desirable and in the public interest to do so in order to encourage the best use of the waters of the Reservation or the lands bordering such waters.

S-45

Grand Portage Reservation Water Quality Standards Final version as of May 24, 2005, with revised criteria adopted August 8, 2006, and appended variance from mercury criteria Page 22 2. ADDITIVITY, GENERAL.

If a discharge is composed of a mixture of more than one chemical and the chemicals have the same mode of toxic action, the Water Resources Board has the option to apply an additive model to determine the toxicity of the mixture using the following formula:

C1 + C2 + ... + Cn Equals a value of one or more; a FCV1 FCV2 FCVn toxic condition may be indicated

where : C1 ... Cn is the concentration of the first to the

nth toxicant. FCV1 ... FCVn is the Final Chronic Value (FCV), as

defined in 40 CFR 132.2, for the first to the nth toxicant.

3. RISK LEVELS AND ADDITIVITY, CARCINOGENS.

Concentrations of carcinogenic chemicals from point or non-point sources, singly or in mixtures, must not exceed risk levels of one chance in 1,000,000 in surface waters. Carcinogenic chemicals will be considered additive in their effect according to the following formula unless an alternative model is supported by available scientific evidence. The additive formula applies to chemicals that have a human health based standard calculated with a cancer potency factor.

C1 + C2 + ... + Cn Equals a value of one or more, a risk level CC1 CC2 Ccn greater than 10-6 is indicated

where: C1...Cn is the concentration of the first to nth

carcinogen. CC1...CCn is the drinking water plus fish consumption

criterion (dfCC) for the first to the nth carcinogenic chemical.

For the chlorinated dibenzo-p-dioxins (CDDs) and chlorinated dibenzofurans (CDFs) listed in 40 CFR, part 132, appendix F, Table 1., potential adverse additive effects in effluents shall be accounted for in accordance with 40 CFR, part 132, appendix F, Procedure 4: Additivity.

4. SITE-SPECIFIC WATER QUALITY CRITERIA.

Water quality criteria may be recalculated to reflect conditions needed to protect uses of a

S-45


particular water body or segment on a case-by-case basis based on site-specific information. Site-specific water quality criteria will be consistent with local fish consumption rates. Bioaccumulation factors and the formulas used for water quality criterion will be consistent with the Final Water Quality Guidance for the Great lakes System, 40 CFR 132, Appendix F, Procedure 1.

5. VARIANCES FROM WATER QUALITY STANDARDS

The Water Resources Board may grant variances from water quality standards on a case-by-case basis at least as protective as the Final Water Quality Guidance for the Great Lakes System, 40 CFR 132, Appendix F, Procedure 2.

6. * STANDARDS THAT VARY WITH TOTAL HARDNESS (TH)

Total hardness is the sum of the calcium and magnesium concentrations expressed as calcium carbonate in mg/L. For ambient or effluent total hardness values greater than 400 mg/L, 400 mg/L must be used in the calculation of the standard. Exp. is the base e exponential function. Formula results are in μg/L.

Example Standards at Hardness of:

50 100 200 300 400 Cadmium, total

CCC = exp. (0.7852[ln (TH mg/l)]-2.715) 1.4 2.5 4.2 5.8 7.3 Chromium (III), total

CCC = exp. (0.819[ln (TH mg/l)]+0.6848) 49 86 152 212 268 Copper, total

CCC = exp. (0.8545[ln(TH mg/l]-1.702) 5.2 9.3 17 24 30 Nickel, total

CCC = exp. (0.846[ln(TH mg/l)]+0.0584) 29 52 94 132 169 Zinc, total

CCC = exp. (0.8473[ln(TH mg/l)]+0.884) 67 120 216 304 388 7. ** STANDARD THAT VARIES WITH pH

Exp. is the base e exponential function. Formula results are in μg/L. The Chronic Standard shall not exceed the human health-based criterion of 5.5 μg/L.

Example standards at pH of:

Pentachlorophenol 6.5 7.0 7.5 8.0 8.5 CCC = exp. (1.005[pH] – 5.134) 4.0 5.5 5.5 5.5 5.5

S-45

Grand Portage Reservation Water Quality Standards Final version as of May 24, 2005, with revised criteria adopted August 8, 2006, and appended variance from mercury criteria Page 24 8. CONVERSION FACTORS FOR TRANSFORMING TOTAL METALS TO

DISSOLVED METALS Table 2. Conversion Factors

METALS CCC (μg/L) CONVERSION FACTOR

Arsenic 1.000 Chromium (III) 0.860 Chromium (VI) 0.962 Copper 0.960 Mercury 0.85 Nickel 0.997 Selenium 0.922 Zinc 0.986

9. METHODOLOGY TO DEVELOP OR REVISE WATER QUALITY CRITERIA

Human health criteria currently listed in Table 3 and the associated bioaccumulation factors (BAFs) were derived using the methodologies in 40 CFR 132, Appendices C and B. Human health criteria were recalculated using the following modified assumptions: (a) human consumption of 142.5 grams per day of fish; (b) human consumption of trophic level 3 fish is one quarter of the fish consumption total and consumption of trophic level 4 fish is three quarters of the fish consumption total; (c) a one-in-one-million cancer risk factor; and (d) the combined total of 2.01 liters per day ingestion of water (i.e. 2.0 liters per day for drinking water criteria combined with 0.01 liters per day incidental ingestion). Aquatic life criteria currently listed in Table 3 of these standards were calculated using the methodologies in 40 CFR 132, Appendix A. Wildlife criteria, and associated BAFs, listed in Table 3 of these standards were calculated using the methodology in 40 CFR 132, Appendix D and B.

For future numeric criteria development or modification, or where numeric criteria are needed to implement a narrative criterion, the Grand Portage Water Resources Board will use the methodologies required by 40 CFR 132.4(a)(2) through (5) which are hereby adopted and incorporated by reference into this chapter:

S-45


1. Appendix A to Part 132 – Great Lakes Water Quality Initiative Methodology for development of aquatic life criteria. However, Chronic Criteria will be used in place of Acute Criteria and shall not be exceeded in waters of the Reservation. 2. Appendix B to Part 132 - Great Lakes Water Quality Initiative Methodology for deriving bioaccmulation factors for development of human health and wildlife criteria. 3. Appendix C to Part 132 – Great Lakes Water Quality Initiative Methodology for development of human health criteria, with the exception of the modified assumptions as stated on page 24, in the first paragraph of number 9, shall be used to calculate new or revised criteria. 4. Appendix D to Part 132 – Great Lakes Water Quality Initiative Methodology for development of wildlife criteria.

For pollutants listed in Table 5 of 40 CFR 132, or for any other pollutants other than those in Table 5 for which the Grand Portage Water Resources Board demonstrates that a methodology or procedure in 40 CFR 132 is not scientifically defensible, the Board shall: (a) apply methodologies or procedures acceptable under 40 CFR 131; or (b) apply alternative implementation procedures that are consistent with all applicable Grand Portage tribal laws.

S-45


Table 3. Numeric Criteria for Designated Uses A, B1, B2, B3, B4 SUBSTANCE OR CHARACTERISTIC µg/l unless otherwise noted

HUMAN HEALTH

CRITERIA (FISH & WATER CONSUMPTION)

AQUATIC LIFE

CHRONIC CRITERIA (CCC)

WILDLIFE CRITERIA

Arsenic, total

5.64E-03

147.9

Benzene (c)

9.11E-01

Benzo(a)pyrene (c) (PAH)

1.35E-04

Beryllium (c) 5.18 ng/l

Cadmium

5.03 *

Chlordane (c)

9.70E-06

Chlorobenzene

5.33E+01

Chromium III, total (TH)

1.92E+05

*

Chromium VI, total 2.93E-04

10.98

Cyanides, free

1.40E+2

5.2

DDT (c) 1.56E-06

1.1E-5

Dieldrin (c)

6.88E-08

0.056

2, 4 Dimethylphenol

3.18E+02

2, 4 Dinitrophenol

4.88E+01

Dioxin (2, 3, 7, 8 TCDD) (c) 9.14E-11

3.1E-9

Endrin

1.09E+02

0.036

Hexachlorobenzene (c) (HCB)

4.78E-06

Hexachloroethane (c)

6.94E-02

Lindane (gamma-BHC)

5.25E-02

0.011

Mercury, total

1.96E-04

0.9081

1.3E-3

Methylene Chloride (c)

4.24

Parathion

0.013

Pentachlorophenol (c), (pH)

1.63E-01

*

*(c) - carcinogen

S-45


SUBSTANCE OR CHARACTERISTIC ug/l unless otherwise noted

HUMAN HEALTH

CRITERIA (FISH & WATER CONSUMPTION)

AQUATIC LIFE

CHRONIC CRITERIA

WILDLIFE CRITERIA

Polychlorinated biphenyls (PCBs), total (c)

2.57E-07

1.2E-4

Selenium, total

9.78E+01

5.0

Toluene 7.40E+02 Toxaphene (c)

7.16E-07

Trichloroethylene (c)

1.80

*(c) - carcinogen XIV. ENFORCEMENT AND CIVIL PENALTIES.

These water quality standards shall be enforced in accordance with the Clean Water Act and this Chapter XIV. For any violation of these water quality standards that is not enforceable by the Band through the certification process of the Clean Water Act (33 U.S.C. § 1341), the following procedures shall apply: 1. Violation of the water quality standards.

Any person who acts to violate these water quality standards or who acts to cause a violation of these water quality standards shall be subject to penalties as well as any other actions set forth herein. In the event of a violation of the water quality standards, the Tribal Water Resources Board shall serve the alleged violator, in person or by certified mail, with a notice of violation. The notice of violation shall state which provisions of the water quality standards are allegedly being violated, and the action that must be taken to correct such violation (including the time within which action must be taken), as well as federal or Band provisions or regulations mandating that such action be taken.

2. Order to cease activity.

In the event of non-compliance with any notice of violation, the Tribal Water Resources Board may order the cessation of the activity causing the violation of the water quality standards without additional notice to the alleged violator. The

S-45


alleged violator shall be served with a statement of reason(s) for the cessation order, and the actions the alleged violator must take before the order will be lifted. A copy of this cessation order and a statement of reason(s) for the order shall be delivered to the Chairperson of the Grand Portage Band of Chippewa within 5 days of its issuance.

3. Remedies.

In the event an alleged violator fails to take action in accordance with the cessation order served pursuant to this Chapter, the Tribal Water Resources Board may pursue one or more of the following remedies: a. continue its cessation order; or b. assess penalties as set forth in XIV (4) herein; and take any other action

deemed appropriate, so long as the rights of due process guaranteed by the Indian Civil Rights Act, 25 U.S.C. § 1301 et seq., and the Constitution of the Minnesota Chippewa Tribe, Article XIII (applicable to members only) are upheld.

4. Civil penalties.

Any person found violating this Chapter shall be subject to civil penalties by the Tribal Water Resources Board of up to five thousand dollars ($5,000.00) per day for each day of such violation or continued violation of a cessation order. The Tribal Water Resources Board shall personally, or via certified United States mail, first class, serve the alleged violator with notice of penalty. The penalty shall be due and payable to the Grand Portage Band of Chippewa within twenty days of such notice. Failure to pay any penalties imposed shall be considered an additional violation of this Chapter.

5. Appeals.

Any person aggrieved by any action taken by the Tribal Water Resources Board may appeal to the Grand Portage Band Tribal Court in accordance with the Rules of Procedure for that Court. The filing of an appeal shall not stay any cessation order or any order to pay penalties unless a stay is granted by the Tribal Court. The Tribal Court may reverse a decision of the Tribal Water Resources Board only if the appealing party can show by clear and convincing evidence that the Tribal Water Resources Board abused its discretion in the decision making

S-45


process, or acted arbitrarily or capriciously.

6. Sovereign immunity.

The Grand Portage Band of Chippewa hereby waives its sovereign immunity fromsuit for the express and limited purpose of enforcing these water quality standards.This waiver of sovereign immunity is expressly limited to the enforcementprocedures contained in this Section only, which are exclusively as follows:

a. administrative enforcement by the Tribal Water Resources Board through:

(1) the issuance of notices of violation;

(2) the issuance of cessation orders,

(3) civil penalties; and

b. judicial enforcement by the Tribal Water Resources Board through theissuance of declaratory and injunctive relief in the Grand Portage Band ofChippewa Tribal Court.

No other relief shall be available under this express and limited waiver of sovereign immunity. This waiver shall not extend to enforcement of these water quality standards in any forum other than the Grand Portage Band of Chippewa Tribal Court nor for any purpose other than the specific enforcement procedures cited in this Section XIV. The limited waiver of sovereign immunity contained in this Section XIV (6) shall extend to the agencies, departments, committees, and other sub-entities of the Grand Portage Band of Chippewa.

7. Severability.

If any clause, sentence, paragraph, Section, or part of this Chapter shall, for anyreason, be adjudicated by any court of competent jurisdiction, to be invalid orunconstitutional, such judgment shall not affect, impair, or invalidate theremainder thereof, but shall be confined in its operation to the clause, sentence,paragraph, Section or part thereof directly involved in the controversy in whichthe judgment shall have rendered.

8. Construction.

This Chapter shall be interpreted and applied consistent with all other Codes,Laws, Ordinances, and Regulations of the Grand Portage Band of Chippewa.

S-45


ATTACHMENT 1

S-45


ATTACHMENT 2

Grand Portage Variance from Human Health and Wildlife Mercury Criterion

Location Implementation Procedures

Designated Uses Mercury Criterion to Protect Designated Uses

Variance Concentration Limit

Grand Portage Bay OTWR- Restricted. B. Aquatic Life1. Cold Water Fishery

908 ng/L 4.7 ng/L

Grand Portage Bay OTWR- Restricted. B. Aquatic Life2. Subsistence Fishing

0.196 ng/L 4.7 ng/L

Grand Portage Bay OTWR- Restricted. C. Wildlife 1.3 ng/L 4.7 ng/L

S-45

Presented below are water quality standards that are in effect for Clean Water Act purposes. EPA is posting these standards as a convenience to users and has made a reasonable effort to assure their accuracy. Additionally, EPA has made a reasonable effort to identify parts of the standards that are not approved, disapproved, or are otherwise not in effect for Clean Water Act purposes.

S-46

IIIIIIIIIIIIIIIIIII

FOND DU LAC BAND OF LAKE SUPERIOR CBIPPEWA

WATER QUALITY STANDARDS OF THE FOND DU LAC RESERVATION

ORDINANCE # 12/98, as amended

Adopted by Resolution # 1403/98 of the Fond du Lac ReservationBusiness Committee on December 10, 1998

Amended by Resolution # 1286/01 of the Fond du Lac ReservationBusiness Committee on September 11. 2001

S-46

IIIIIIIIIIIIIIIIIII

CSAPTJZRl

CHAPTER 2

CHAPTER3

CHAPTER4

CHAPTER5

cBApTER6

CRAPTER7

CHAPTER8

CRAPTERS

CHAPTER10

APPENDIX1

APPENDIX2

APPENDIX3

TABLE OFCONTENTS

AUTBORITY, PURPOSE AND SCOPE . . . .

DEFINITIONS _ _ _ . . _ . . - . .

GENERAL STANDARDS AND DESIGNATED USES

. . . . . 2

. . . . . 9

. . . . _ 1 6

DESIGNATED USES APPLICABLE TO RESERVATIONNATER8 *...................21

SAMPLINGANDANALYSIS . . . . . . . . . . . 25

WATERQUALITY STANDARDSANDCRITERIA. . . . . . 26

SITE SPECIFIC WATER QUALITY STANDARDSANDCRITERIA..................~~

MIXING ZONES AND VARIANCES.. _ _ . . _ . ...33

ENFORCRMEWT 6 PROSECUTION . . , . . . . . . 41

AMEWDMENTSANDSFWF.RABILITY . . . . . . . ...42

STANDARDS SPECIFIC TO DESIGNA!FED USES . . . . . . 43

STANDAPDSTtiTVARYWITHTOTALBARDNESS . . . . 46

BAClWlIOLOGICALSTAND~S . . . . . . . . ...48

S-46

IIIIIIIIIIIIIIIII

I

I

FOND DU LAC BAND OF LAKE SUPERIOR CBIPPEWA

WATER QUALITY SThDARDS OF THE FOND DU LAC RESERVATION

ORDINANCE # 12/98

CHAPTER1

AUTHORITY, PURPOSE AND SCOPE

Section 101 Authority

This Ordinance is enacted pursuant to the inherent sovereignauthority of the Fond du Lac Reservation Business Committee(Reservation Business Committee), as the.governing body of the Fonddu Lac Band of Lake Superior Chippewa, as granted by Article VI ofthe Revised Constitution of the Minnesota Chippewa Tribe, and asrecognized under the Treaty of LaPointe, 10 Stat. 1109, underSection 16 of the Indian Reorganization Act, 25 U.S.C. 5 476, andunder sections 303 and 518 of the Clean Water Act, 33 U.S.C. 551313 & 1377.

Section 102 Pllmse

The purpose of this Ordinance is to protect the health andwelfare of.the Fond du Lac Band and other residents of the Fond duLac Reservation through:

a. The designation of uses for which the waters of the Fonddu Lac Reservation shall be protected;

b. The establishment of water quality criteria in order toattain and sustain those designated uses; and

C . The protection and enhancement of fish and other aquaticlife and wildlife on and near the Fond du LacReservation.

Section 103 ssc?ER

The water quality standards established under this Ordinanceshall apply to all waters of the Fond du Lac Reservation, includingwetlands. The standards will be applied to activities on theReservation which may impact the quality of waters upon, under,flowing through or adjacent to the Fond du Lac Reservation, andshall be the primary basis for managing discharges attributable topoint and non-point sources of pollution.

2

S-46

Section 104 Reservation of Rights

The Reservation Business Committee reserves the right to amendor repeal all or any part of this Ordinance at any time. All therights, privileges, or immunities conferred by this Ordinance or byacts done pursuant thereto shall exist subject to the power of theReservation Business Committee. Nothing in this Ordinance shall beconstrued to constitute a waiver of the sovereign immunity of theFond du Lac Band or a consent to jurisdiction by any forum notexpressly authorized to exercise jurisdiction under this Ordinance.The water quality standards established under this Ordinance arenot intended to control, and shall not be invalidated by, naturalbackground phenomena or acts of God.

Any proposed changes or revisions to these standards shall bepreceded by a public notice in a local newspaper and a minimumforty-five consecutive day comment period. During this commentperiod, any Band member or other interested persons may request apublic hearing prior to adoption of such changes or revisions bythe Reservation Business Committee. Upon approval of a publichearing request, the Reservation Business Committee shall by publicnotice in a local newspaper announce the date, time and location ofsuch public hearing and said public notice shall be published atleast forty-five consecutive days prior to the public hearing. Anyreports, documents and data relevant to the discussion at thepublic hearing shall be available at least thirty days before thehearing.

These standards shall be revrewed and updated, as necessaryand appropriate, by the Reservation Business Committee at leastonce every three years. Prior to such action, any proposed changesor revisions to these standards shall be preceded by a publicnotice in a local newspaper and a minimum forty-five consecutiveday comment period. In addition, the Reservation BusinessCommittee shall conduct a public hearing to obtain comments onthese standards and there shall be public notice in a localnewspaper to announce the date, time and location of such publichearing. The public notice shall be published at least forty-fiveconsecutive days prior to the public hearing. Any reports,documents and data relevant to the discussion at the public hearingshall be available at least thirty days before the hearing.

S-46

IIIIIIIIIIIIIIIIII

I

Section 105 Antidearadation Policy and Wlementation

The Reservation Business Committee hereby declares thefollowing anti-degradation policy for all waters on or adjacent tothe Fond du Lac Reservation:

a . Policy

1. Existing instream water uses, as defined pursuantto 40 C.F.R. Part 131, and the level of waterquality necessary to protect existing uses shall bemaintained and protected. No further water qualitydegradation which would interfere with or becomeinjurious to existing or designated uses shall bepermitted.

2. Waters in which the existing quality surpasses, ona pollutant by pollutant basis, the standardsprescribed under this Ordinance, and unequivocallyattains those levels necessary to supportmaintain existing water uses,

and

habitats,aquatic and wetland

water,and wildlife and recreation in and on the

ofare considered high quality for the purposes

this antidegradation policy and implementationprocedures.

3. Degradation of water quality shall not be permittedwhere it will bedesignated

injurious to existing oruses. The Reservation Business

Committee or appropriate permitting authority shallimpose the most stringent regulatory controls forall newimpose

and existing point sources, and shallcost effective and reasonable best

management practices for non-point sources andwetland alterations.

4. For waters identified as high quality under 105.a.2of this Ordinance,Business Committee,

the Fond du Lac Reservationafter appropriate public notice

and intergovernmental coordination requirements andafter due consideration of sucheconomic,

technical,social and other criteria in the area in

which the water is located, may choose to allowlower water quality, where lower water quality isdetermined to be necessary to support importantsocial and economic development.

5. Waters proposed in this Ordinance as OutstandingReservation Resource Waters (ORRW) shall bedesignated as such upon approval of this Ordinanceand maintained and protected. Waters may bedesignated an ORRW because of exceptional cultural,aesthetic, recreational or ecological significance.Upon approval of this Ordinance, other waters may

4

S-46

IIIIIIIIIIIIII

I

I

I

I

I

b.

be designated ORRW as determined by the ReservationBusiness Committee after at least one publichearing. Water quality in ORRWs shall be maintainedand protected without degradation.

6 . In situations giving rise to potential waterquality impairment due to a thermal discharge, theReservation Business Committee shall implement theanti-degradation policy through regulationsconsistent with Section 316 of the Clean Water Act,as amended, 33 U.S.C. 5 1326.

Implementation

1. Lowerina of Water Quality

A significant Lowering of Water Quality is defined as: 1)the projected or observed diminished chemical orbiological integrity of Reservation surface waters asestablished by the Fond du Lac Environmental Programthrough the collection and analysis of baselinebiological data, and the determination of referenceconditions for such surface waters; or, 2) a new orincreased loading of a pollutant from any regulatedexisting or new facility, either point source or nonpointsource, for which there is a control document orreviewable action, as a result of any activity including,but not limited to:

A.

B.

C.

D.

E.

Construction of a new regulated facility ormodification of an existing regulated facilitysuch that a new or modified control documentis required;

Modification of an existing regulated facilityoperating under a current control documentsuch that the production capacity of thefacility is increased;

Addition of a new source of untreated orpretreated effluent containing or expected tocontain any pollutant to an existingwastewater treatment works, whether public orprivate;

A request for an increased limit in anapplicable control document; and

Other deliberate activities that, based on theinformation available, could be reasonablyexpected to result in an increased loading ofany pollutant to any waters of the Fond du LacReservation.

5

S-46

IIIIIIIIIIIIIIII

I

I

I

2 . Review of Antideuradation Demonstrations

For all waters, the Reservation Business Committeeshall ensure that the level of water qualitynecessary to protect existing uses is maintained.In order to achieve this requirement, andconsistent with 40 C.F.R. Part 132, water qualitystandards use designations must include allexisting uses. Controls shall be established asnecessary on point and nonpoint sources ofpollutants to ensure that the criteria applicableto the designated use are achieved in the water andthat any designated use of a downstream water isprotected. Where water quality does not supportthe designated uses of a waterbody or ambientpollutant concentrations exceed water qualitycriteria applicable to the waterbody, theReservation Business Committee shall not allow alowering of water quality for the pollutant orpollutants preventing the attainment of such usesor exceeding such criteria.

3 . Outstandina Reservation Resource Waters (ORRW)

For water designated as ORRW, the ReservationBusiness Committee or appropriate permittingauthority shall ensure, through the application ofappropriate controls on point and non-pointpollutant sources, that water quality is maintainedand protected. A short-term, temporary exemptionmay be permitted. Any regulated activity that hasthe potential to cause or contribute to anylowering of water quality in a water designated bythe Reservation Business Committee as an ORRW isinconsistent with the intent of this Ordinance.

4 . Eiah Oualitv Waters

For high quality waters, the Reservation BusinessCommittee shall ensure, or request the appropriatepermitting authority to ensure, that no actionresulting in a lowering of water quality occursunless an antidegradation demonstration has beencompleted and the information thus provided isdetermined by the Reservation Business Committee toadequately support the lowering of water quality.

The Reservation Business Committee or appropriatepermitting authority shall establish conditions inthe control document applicable to the regulatedactivity that prohibit the regulated activity fromundertaking any deliberate action, such that therewould be an increase in the rate of mass loading ofany BCC or other pollutant, unless an

6

S-46

IIIIIIIIIIIIIIIIIII

antidegradation demonstration is provided to theReservation Business Committee and approved.Imposition of limits due to improved monitoringdata or new water quality criteria or values, orchanges in loadings of any BCC within the existingcapacity and processes, and that are covered by theexisting applicable control document, are notsubject to an antidegradation review.

For BCCs known or believed to be present in adischarge, from a point or nonpoint source, amonitoring requirement shall be included in thecontrol document. The control document shall alsoinclude a provision requiring the source to notifythe Reservation Business Committee and appropriatepermitting authority of any increased loadings.Upon notification, the Reservation BusinessCommittee or appropriate permitting authority shallrequire actions as necessary to reduce or eliminatethe increased loading.

0. Antidearadation Demonstration

Any entity seeking to lower water quality in a highquality water or create a new or increased discharge ofbioaccumulative substances of immediate concern mustfirst submit an antidegradation demonstration forconsideration and approval or disapproval by theReservation Business Committee. The antidegradationdemonstration shall include, but may not be limited, tothe following:

1. Pollution Prevention Alternative Analysis.Identify any cost-effective pollution preventionalternatives and techniques that are available toeliminate or significantly reduce the extent towhich the increased loading results in a loweringof water quality;

2. Alternative or Enhanced Treatment Analysis.Identify alternative or enhanced treatmenttechniques that are available that would eliminatethe lowering of water quality and their costsrelative to the cost of treatment necessary toachieve the applicable effluent limitations; and

3. Social and Economic Analysis. Identify the socialand economic development benefits to the area inwhich the waters are located that will be foregoneif the lowering of water quality is not allowed.

S-46

IIIIIIIIIIIIIII

I

I

I

I

d . Antidearadation Decision

Once the Reservation Business Committee determines theinformation provided in an antidegradation demonstrationis administratively complete, the Reservation BusinessCommittee shall use that information to determine whetheror not the lowering of water quality is necessary and, ifnecessary, whether or not the lowering of water qualitywill support important social and economic developmentgoals. If the proposed lowering of water quality iseither not necessary, or will not support importantsocial and economic development goals, the ReservationBusiness Committee shall deny the request to lower waterquality. If the lowering of water quality is necessary,and will support important social and economicdevelopment goals, the Reservation Business Committee mayapprove all or part of the proposed lowering to occur asnecessary.

Prior to issuing a decision, the Reservation BusinessCommittee shall publish a notice in a local newspaper andprovide a minimum forty-five consecutive day commentperiod. During this comment period, any Band member orother interested persons may request a public hearing ofsuch changes or revisions by the Reservation BusinessCommittee. Upon approval of a public hearing request,the Reservation Business Committee shall by public noticein a local newspaper announce the date, time and locationof such public hearing and said public notice shall bepublished at least forty-five consecutive days prior tothe public hearing. The Reservation Business Committeeshall send a notice of the public hearing to allidentified interested and affected persons and parties atleast forty-five consecutive days prior to the publichearing. Any reports, documents and data relevant to thediscussion at the public hearing shall be available atleast thirty days before the hearing. In no event maythe decision reached by the Reservation BusinessCommittee allow the water quality to be lowered below theminimum level required to fully support existing anddesignated uses. Final decisions on requests to lowerwater quality shall be issued by the Reservation BusinessCommittee within 90 days of the public comment period.

S-46

CHAPTER2

DEFINITIONS

Section 201 General Definitions

The following definitions shall apply to the terms of thisOrdinance:

a . Acute toxicity shall mean concurrent and delayed adverseeffect(s) that results from an acute exposure and occurswithin any short observation period which begins when theexposure begins, may extend beyond the exposure period,and usually does not constitute a substantial portion ofthe life span of the organism.

b. Aesthetics shall mean a stream, reach, lake orimpoundment with an exceptional beauty or foundrepresenting the traditional value system of the Fond duLac Band of Chippewa as determined by the Fond du LacReservation Business Committee.

c. Antidearadation shall mean the policy set forth in thewater quality regulations under the Clean Water Act, asestablishedbythe United States Environmental ProtectionAgency, whereby existing and future uses and the level ofwater quality necessary to maintain those uses ismaintained and protected. (See 40 C.F.R. 5 131.12).

d . Aauatic biota shall mean animal and plant life in thewater.

e. Bioaccumulation Factor (BAF) shall mean the ratio (inL/kg) of a substance's concentration in tissue of anaquatic organism to its concentration in the ambientwater, in situations where both the organism and its foodare exposed and the ratio does not change substantiallyover time.

f . Bioaccumulative Chemical of Concern IBCC1 shall mean anychemical that has the potential to cause adverse effectswhich, upon entering surface waters, by itself or as itstoxic transformation product, accumulates in aquaticorganisms by a human health bioaccumulation factorgreater than 1000, after considering metabolism and otherphysicochemical properties that might enhance or inhibitbioaccumulation, in accordance with the methodology inappendix B of 40 C.F.R. Part 132. Chemicals with half-lives of less than eight weeks in the water column,

9

S-46

sediment, and biota are not BCCs. The minimum BAFinformation needed to define an organic chemical as a BCCis either a field-measured BAF or a BAF derived using theBSAF methodology. The minimum BAF information needed todefine an inorganic chemical, including an organometal,as a BCC is either a field-measured BAF or a laboratory-measured BCF. BCCs include, but are not limited to, thepollutants identified as BCCs in Section A of Table 6 of40 C.F.R. Part 132.

g. Bioaccuumlative Substances of Immediate Concern (BSIC)shall mean the list of substances identified in theSeptember, 1991 Bi-National Program to restore andprotect the Lake Superior Basin. They include: 2, 3, I,8-TCDD; octachlorostyrene; hexachlorobenzene; chlordane;dieldrin, DDT, DDE, and other metabolites;PCBs; and mercury.

toxaphene;Other chemicals may be added to the

list following assessments of environmental effects andimpacts after public review and comment.

h. Bioconcentration factor (BCF) shall mean the ratio inL/kg of a substance's concentration in tissue of anaquatic organism to its concentration in the ambientwater, in situations where the organism is exposedthrough the water only and the ratio does not changesubstantially over t i m e .t i m e .

1.1. Biolouical intearity shall mean a balanced, integrated,adaptive community of organismscomposition,

having a speciesdiversity, and functional organization

comparable to that of the natural habitat of the region.

j. Biota-Sediment Accumulation Factor (BSAF) shall mean theratio (in kg of organic carbon/kg of lipid) of asubstance's lipid-normalized concentration in tissue ofan aquatic organism to its organic carbon-normalizedconcentration in surface sediment, in situations wherethe ratio does not change substantially over time, boththe organism and its food are exposed, and the surfacesediment is representative of the average surfacesediment in the vicinity of the organism.

k. Carcinocren shall mean a substance which causes anincreased incidence of benign or malignant neoplasms, orsubstantially decreases the time to develop neoplasms, inanimals or humans.

1 . Chronic standard tCS) shall mean the highest waterconcentration of a toxicant to which organisms can beexposed indefinitely without causing chronic toxicity.

m.m. Chronic toxicitv shall mean the concurrent and delayedadverse effect(s) that occurs only as a result of achronic exposure.

10

S-46

IIIIIIIIIIIIIIIIIII

n. Cold water fisheries shall mean a stream, reach, lake orimpoundment where water temperature, habitat and othercharacteristics are suitable for support and propagationof cold water fish and other aquatic life, or serving asa spawning or nursery area for cold water fish species.Examples of cold water fish include brook trout andrainbow trout.

0. Control Document shall mean any authorization issued bythe Reservation Business Committee or appropriatepermitting authority to any source of pollutants towaters under its jurisdiction that specifies conditionsunder which the source is allowed to operate.

P- Desisnated uses shall mean those uses set forth in thewater quality standards herein.

9. Dissolved oxvcen shall mean the amount of oxygendissolved in' water expressed as a concentration inmilligrams per liter.

r. Effluent shall mean discharges into surface waters fromother than natural sources.

5. Existina Discharcer shall mean any building, structure,facility or installation from which there is or may be a"discharge of pollutants," as defined in 40 C.F.R. 5122.2, to the Lake Superior Basin, that is not a newdischarger.

t . Excanded Discharae shall mean a discharge of a pollutantto a Reservation surface water in the Lake Superior Basinthat changes in volume, quality, location, or any othermanner after either: the effective date the water wasdesignated as an Outstanding Reservation Water; or theeffective date of this Ordinance if the water wasdesignated as a High Quality Water. In determiningwhether an increased loading would result from the changein the discharge, the Reservation Business Committeeshall compare the loading that would result from thechange with the loading that exists as of the effectivedate specified above, whichever applies.

u. Final acute val& (FAV) is (a) a calculated estimate ofthe concentration of a test material such that 95 percentof the genera (with which acceptable acute toxicity testshave been conducted on the material) have higher GenusMean Acute Values (GMAVs), or (b) the Species Mean AcuteValue (SMAV) of an important and/or critical species, ifthe SMAV is lower than the calculated estimate.

v. Fishery shall mean a balanced, diverse community offishes controlled by the water quality, quantity andhabitat of a waterbody.

11

S-46

IIIIIIIIIIIIIIIIIII

II.

x.

Y-

a.

aa.

bb.

cc.

dd.

ee.

ff.

Genus mean acute value (Q4AV) shall mean the geometricmean of the SMAVs for the genus.

GLI Pollutant shall mean a toxic pollutant listed as apollutant of initial focus in the Great Lakes Initiative(GLI) Guidance, 40 C.F.R. Part 132, Table 6, as amendedthrough March 12, 1997.

GLI Guidance shall mean the Water Quality Guidance forthe Great Lakes System, 40 C.F.R. Part 132, as amendedthrough March 12, 1997.

Hiuh Oualitv Waters shall mean surface waters of theReservation in which, on a parameter by parameter basis,the quality of the waters exceeds levels necessary tosupport propagation of fish, shellfish, and wildlife andrecreation in and on the water.

Human cancer value (ECV) is the maximum ambient waterconcentration of a substance at which a lifetime ofexposure from either: drinking the water, consuming fishfrom the water, and water-related activities: orconsuming fish from the water, and water-relatedrecreation activities, will represent a plausible upper-bound risk of contracting cancer of one in 100,000 usingthe exposure assumptions specified in the Methodologiesfor the Development of Human.Health Criteria and Valuesspecified in appendix C of 40 C.F.R Part 132.

Human noncancer value UINV) is the maximum ambient waterconcentration of a substance at which adverse noncancereffects are not likely to occur in the human populationfrom lifetime exposure via either: drinking the water,consuming fish from the water, and water-relatedactivities: or consuming the fish from the water, andwater-related activities, using the Methodologies for theDevelopment of Human Health Criteria and Values inappendix C of 40 C.F.R Part 132.

Indiaenous shall mean produced, growing or livingnaturally in a particular region or environment.

Maximum standard (MS) shall mean the highestconcentration of a toxicant in water to which aquaticorganisms can be exposed for a brief time with zero toslight mortality. The MS equals the FAV divided by two.

Milligrams pet liter (mu/l) shall mean the concentrationat which one milligram is contained in a volume of oneliter; one milligram per liter is equivalent to one partper million (ppm) at unity density.

tixina zone shall mean a limited area or volume of waterwhere initial dilution of a discharge takes Place and

12

S-46

IIIIIIIIIIIIIIII

w.

hh.

ii.

jj.

kk.

11.

mm.

nn.

00.

PP.

where numeric water quality criteria can be exceeded butacutely toxic conditions are prevented.

Narrative standard shall mean a standard or criterionexpressed in words rather than numerically.

Natural backaround shall mean characteristics that arenot man induced that relate to water quality; the levelsof pollutants present in ambient water that are fromnatural, as opposed to human-induced, sources.

New Discharue shall mean a discharge that was not inexistence on the effective date of this Ordinance.

Nephelometric turbiditv units (WTU) shall mean a measureof turbidity in water.

Non-Point source shall mean a source of pollution that isnot a discernible, confined and discrete conveyance; adiffuse source which flows across natural or manmadesurfaces, such as run-off from agricultural,construction, mining or silvicultural activities or fromurban areas.

Nutrient shall mean a chemical element or inorganiccompound taken in by green plants and used in organicsynthesis.

Outstandinu reservation resource raters (ORRW) shall meanthose waters of the highest quality that are designatedby the Reservation Business Committee for theiruniqueness or ecological sensitivity. Waters may bedesignated as ORRW because of their exceptional cultural,aesthetic, recreational or ecological significance.

a shall 'mean the negative logarithm of the effectivehydrogen ion concentration in gram equivalents per liter;a measure of the acidity or alkalinity of a solution,increasing with increasing alkalinity and decreasing withincreasing acidity.

Point source shall mean any discernible, confined anddiscrete conveyance from which pollutants are or may bedischarged into a water body.

Pollutant, shall mean dredged spoil, solid waste,incinerator residue, filter backwash, sewage, garbage,sewage sludge, munitions, chemical wastes, biologicalmaterials, heat, wrecked or discarded equipment, rock,sand, cellar dirt and industrial, municipal andagricultural waste discharged into water.

Primarv contact recreational shall mean the recreationaluse of a stream, reach, lake or impoundment involving

13

S-46

IIIIIIIIIIIIIIIIIII

rr.

55.

t t .

vv.

ww.

xx.

YY.

prolonged contact and the risk of ingesting water inquantities sufficient to pose a health hazard. Examplesare swimming and water skiing.

Public water SUDD~V shall mean a stream, reach, lake orimpoundment specifically designated by the Fond du LacReservation Business Committee as suitable to provide anadequate supply of drinking water for the continuation ofthe health and well-being of the residents of the Fond duLac Reservation.

Reservation Business Committee shall mean the governingbody of the Fond du Lac Band of Lake Superior Chippewa.

Secondarv contact Recreational shall mean therecreational use of a stream, reach, lake or impoundmentin which contact with the water may, but need not, occurand in which the probability of ingesting water isminimal. Examples are fishing and boating.

Species mean acute value (SMAVl is the geometric mean ofthe results of all acceptable flow-through acute toxicitytests (for which the concentrations of the test materialwere measured) with the most sensitive tested life stageof the species. For a species for which no such resultis available for the most sensitive tested life stage,the SMAV is the geometric mean of the results of allacceptable acute toxicity tests with the most sensitivetested life stage.

Total Maximum Dailv Loan CI%5XI shall mean the sum of theindividual wasteload allocations for point sources andload allocations for nonpoint sources and naturalbackground. A TMDL sets and allocates the maximum amountof a pollutant that may be introduced into a water bodyand still assure attainment and maintenance of waterquality standards.

Toxic shall mean harmful to living organisms.

Toxicity shall mean the state or degree of being toxic orpoisonous, lethal or sub-lethal adverse effects onrepresentative sensitive organisms, due to exposure totoxic materials.'

Toxic unit means a measure of acute or chronic toxicityin an effluent. One acute toxic unit (Tua) is thereciprocal of the effluent concentration that causes 50percent effect of mortality to organisms for acuteexposures (lOO/LCSO); one chronic toxic unit (Tut) is thereciprocal of the effluent concentration that causes noobservable effect concentration on test organisms forchronic exposures (lOO/NOEC).

14

S-46

IIIIIIIIIIIIIIIIIII

zz. Turbidity shall mean a measure of the amount of suspendedmaterial, particles or sediment which has the potentialEar adverse impacts on aquatic biota.

aaa. Warm water fisheries shall mean a stream, reach, lake orimpoundment where water temperature, habitat and othercharacteristics are suitable for support and propagationof warm water fish and other aquatic life, or serving asa spawning or nursery area for warm water fish species.Examples of warm water fish species include large mouthbass and bluegills.

bbb. Waste Loadina Allocation (WLA) shall mean the portion ofa receiving water's loading capacity that is allocated toone of its existing or future point sources of pollution.A WLA is the allocation for an individual point sourcethat ensures that the level of water quality to beachieved by the point source is derived from and complieswith all applicable water quality standards.

ccc. Water aualitv monitoring shall mean an integratedassessment of water quality that incorporates physical,chemical and biological components.

ddd. Whole-effulent toxicity (WET) shall mean the total toxiceffect of an effulent measured directly with a toxicitytest.

eee. Wild rice areas shall mean a stream, reach, lake orimpoundment, or portion thereof, presently, historicallyor that has the potential to sustain the growth of wildrice.

fff. WQBEL shall refer to water quality-based effluent limits.

15

S-46

IIIIIIIIIIIIIIIIIII

CHAPTER3

GENERAL STANDARDS AND DESIGNATED USES

Section 301 General Standards

To every extent practical and possible, as determined by theReservation Business Committee, the following general water qualitycriteria shall apply to all waters of the Fond du Lac Reservation;provided, however, that where more stringent standards fordesignated water bodies are set,the general standards:

the stricter standards supersede

a. Reservation waters shall be free from suspended andsubmerged solids or other substances that enter thewaters as a result of human activity and that will settlein the bed of a body of water or be deposited upon theshore of that body of water to form putrescent orotherwise objectionable deposits, or that will adverselyaffect aquatic life.

b. Reservation waters shall be free from floating debris,oil, scum and other floating materials entering thewaters as a result of human activity in amountssufficient to be unsightly or cause degradation.

C . Reservation waters shall be free from material enteringthe waters as a result of human activity producing color,odor, taste or other conditions in such a degree as tocreate a nuisance.

d. Reservation waters shall be free from nutrients (nitrogenand phosphorus) entering the waters as a result of humanactivity in concentrations that create nuisance growthsof aquatic weeds and algae.

e . Reservation waters shall be free from substances enteringthe waters as. a result of human activity inconcentrations that are toxic.

For toxic substances lacking a published numeric criteriain these water quality standards, criteria will bederived as necessary using the procedures contained inthe Final Water Quality Guidance for the Great LakesSystem, 40 C.F.R. Part 132. Where there are insufficientdata to derive a criterion, the procedures in the FinalWater Quality Guidance for the Great Lakes System, 40C.F.R. Part 132, shall be used to derive a secondaryvalue to protect aquatic life and human health. The

16

S-46

followingmethodologies, including future amendments, fordeveloping, criteria (Tier I and Tier II) to protectaquatic life, human health, and wildlife, and thebioaccumulation factors for calculating human health andwildlife standards, are adopted and incorporated byreference into this chapter:

1.

2.

3 .

4 .

5 .

6.

I.

;;;at Lakes Water Quality Initiative MethodologyDevelopment of Aquatic Life Criteria and

Values, 40 C.F.R. Part 132, Appendix A, as amendedthrough March 12, 1997, except that the daily humanconsumption of fish by Fond du Lac band members isassumed to be 0.060 kg/day.

Great Lakes Water Quality Initiative Methodologyfor Deriving Bioaccumulation Factors, 40 C.F.R.Part 132, Appendix B, as amended through March 12,1997, except that for human health standards andcriteria, the baseline BAF is multiplied by thefollowing lipid fractions which apply to fish inboth trophic levels 3 and 4: 0.06 for Class A, B,and Cl waters, and 0.015 for Class C2.

Great Lakes Water Quality Initiative Methodologyfor Development of Human Health Criteria .andValues, 40 C.F.R. Part 132, Appendix C, as amendedthrough March 12, 1997.

Great Lakes Water Quality Initiative Methodologyfor Development of Wildlife Criteria, 40 C.F.R.Part 132, Appendix D, as amended through March 12,1997.U.S. EPA "Technical Support Document for WaterQuality Based Toxics Control;"

U.S. EPA Region V "Permitting Strategy;" and

U.S. EPA "Quality Criteria for Water, 1986." Forsubstances where numeric criteria have not beenadopted for the public water supply use, thesenarrative water quality criteria shall beimplemented considering any drinking waterstandards or health advisories issued by the U.S.Environment-d1 Protection Agency under the SafeDrinking Water Act.

f. The pH of a stream, lake or reservoir shall not bepermitted to fluctuate in excess of 1.0 unit over aperiod of twenty-four (24) hours for other than naturalcauses.

g. If a stream or lake is capable of supporting aquaticlife, the dissolved oxygen standard will be a dailyminimum of 5 mg/l for other than natural causes. For

17

S-46

IIIIIII

I

I

I

I

I

I

I

I

I

I

I

h .

1.

j.

k.

1 .

m.

waters designated as cold water fisheries, the dissolvedoxygen criterion will be a daily minimum of 8 mg/l toProtect early life stages of cold water fish (enabling arequired intergravel dissolved oxygen concentration of 5mg/l) . This criterion applies only when and where theseearly life stages occur.

Settleable and suspended solids (turbidity) should notreduce the depth of the compensation point forphotosynthetic activity by more than 10 percent from theseasonally established norm for aquatic life

Concentrations of radioactive materials shall not exceedconcentration caused by naturally occurring materials.

Existing mineralmunicipal,

quality shall not be altered byindustrial and in-stream activities or other

waste discharges so as to interfere with the designateduses for a water body.

The introduction of heat by other than natural causesshall not increase the temperature of Reservation watersby more than three degrees Fahrenheit from ambienttemperatures for Reservation lakes, and five degreesFahrenhei.t from ambient temperatures for Reservationstreams above that which existed before the addition ofheat, based upon the monthly average of daily maximumtemperature.

The normal daily and seasonal variations that werepresent before the addition of heat from other thannatural sources, and which are outside the mixing zone,shall be maintained.

No material increase in temperature shall be allowed fromman-introduced heat for receiving waters classified as Clcoldwater, applied as a matter of practice at the edge ofthe mixing zone.

~11 naturally occurring biological communities and thehabitat needed to support them, as determined bysampling, data analysis and establishment of referenceconditions shall be maintained and protected in allwaterways and wetlands of the Reservation.

my lake or stream which supports wild rice growth shallnot exceed instantaneous maximum sulfate levels of 10milligrams per liter.

18

S-46

IIIIIIIIIIIIIIIIII.I

Section 302 Standards of Desianated Use

The following standards of designatedwaters of the Fond du Lac Reservation:

a.

b.

c.

d.

use shall apply to the

Public water supply: A s c r e a m , reach, lake orimpoundment specifically designated by the ReservationBusiness Committee as suitable to provide an adequatesupply of drinking water for the continuation of thehealth and well-being of the residents of the Fond du LacReservation.

Wildlife: All surface waters capable of providing awater supply, vegetative habitat and prey for the supportand propagation of wildlife located within the Fond duLac Reservation.

Aouatic life:

1. Cold Water Fisheries: A stream, reach, lake orimpoundment where water temperature, habitat andother characteristics are suitable for support andpropagation of cold water fish and other aquaticlife, or serving as a spawning or nursery area forcold water fish species. Examples of cold waterfish include brook trout and rainbow trout.

2. Warm rater fisheries: A stream, reach, lake orimpoundment where water temperature, habitat andother characteristics are suitable for support andpropagation of warm water fish and other aquaticlife, or serving as a spawning or nursery area forwarm water fish species. Examples of warm waterfish species include large mouth bass andbluegills.

3 . Subsistence fishinu (nettinq): That portion of theFond du Lac Reservation necessary to provide asufficient diet of fish in order to sustain ahealthy, current, on-Reservation population,including any stream, reach, lake or impoundmentwhere spearing, netting or bow fishing is allowedas provided under applicable Band conservationlaws.

Recreation:

1. Primam contact recreational.: The recreational useof a stream, reach, lake or impoundment involvingprolonged contact and the risk of ingesting waterin quantities sufficient to pose a health hazard.Examples are swimming and water skiing.

19

S-46

IIIIIIIIIIIIIIIIIII

2. Secondarv contact recreational: The recreationaluse of a stream, reach, lake or impoundment inwhich contact with the water may, but need not,occur and in which the probability of ingestingwater is minimal. Examples are fishing andboating.

8. Cultural:

1 . Wild rice areas : A stream, reach, lake orimpoundment, or portion thereof, presently,historically or with the potential to be vegetatedwith wild rice.

2 Aesthetic waters: A stream, reach, lake orimpoundment which has been determined by theReservation Business Committee to possessexceptional beauty or be significant to thepreservation or exercise of the traditional valuesystem of the Fond du Lac Band of Lake SuperiorChippewa, which may include but is not limited toprimary (direct) contact with water or thepreservation of wetlands for the maintenance oftraditional medicinal plants.

f. Aaricultural: The water quality is adequate for uses inirrigation and livestock watering.

Q- Naviaation: The water quality is adequate for navigationin and on the water.

h. Commercial: The water quality is adequate for use(s) ascommercial water supply for business processes.

20

S-46

IIIIIIIIIIIIIIIIIII

CHAPTER4

DESIGNATED USES APPLICABLE TO RESERVATION WATERS

TOWNSHIP RANGE SECTION DESIGNATEDUSE

Bang 48N 19w

Big Lake 49N 18W

Cedar 49N 18W

Dead Fish*I

49N

East Twin 50N 18W 23, 24,25, 26

First Lake 49N 17w 21

Hardwood

Jaskari*

Lac

49N 18W

48N 19w49N 19w

49N 19w

LostI

SONI

18W

Martin (JoMartin)

50N 19w

21

1, 2

20, 21,28, 33

10, 15

1, 12

5, 6

1, 2,36

12, 13

9, 30

12

13, 14,23

6

B, C2, Dl,D2, El, F,G, H

B, C2, C3,Dl, D2, F,G, H

B, C2, Dl,El, F, G, H


B, C-2, Dl,El, F, G, H

B, F, G,C2, Dl, H

B, C2, Dl,El, Fr G, H


B, C2, Dl,E2, F, G, H

B, C2, C3,Dl, D2, F,G, H

B, Cl, C2,C3, Dl, D2,E2, F, G, H


B, C2, C3,Dl, El, F,G, H

S-46

Perch*

Rice Portage*

Simian

Sofie

Spring

Spruce

Third Lake

West Twin

Wild Rice*

TOWNSBIP RANGE SECTION DESIGNATEDUSE

48N 18W 6 B, c2, c3,48~ 19w 1 Dl, El, E2,49N 18W 29, 30, F, G, H

3149N 19w 36

49N 19w 25, 26 B, C2, Dl,El, E2, F,G, H

50N 18W 32 B, Dl, El,F, G, H, C2

50N 17w 29 B, C2, C3,Dl, El, F,G, H

49N 18W 29, 32 B, c2, c3,Dl, F, G, H

48~ 19w 1 B, C2, Dl,El, F, G, H

49N 19w 27 B, C2, Dl,El, F, G, H

49N 17W 21 B, c2, c3,Dl, D2, F,

50N 1 18W 123, 26 I",;,";;."f;,

48N 18W 3 B, C2, 01,El, F, G, H

49N 17w 21 B, El, C2,I I 1 Dl, F, G

Second Lake

STREAMS

Annamhasung

?lartin Branch

48~. 19w 2 B, C2,.Dl,49N 19w 26, 21, F, H, G

34, 35

50N 18W 3, 4, 5, B, Cl, C3,7, 8 Dl, E2, F,

50N 19w 12 G, H

22

S-46

IIIIIIIIIII.IIIIIIII

Otter Creek

Simian Creek

jpring Creek

?ond du Lac:reek

jtoney Brook

TOWNSEIP RANGE

48~49N

49N

49N49N

50N

A

50N

49N

48N49N

49N

SON

50N

51N-

17w17w

18W

17w18W

17w

18W

18W

17w

19w18W

19w

18W

19w

18W

23

SECTION DESIGNATEDUSE

319, 20,28, 29,30, 32,33, 3425, 26

61, 2, 3,1020,21,22,29,30,3132

B, Cl, c3,Dl, E2, F,G, H

B, C2, Dl,F, G, H

1,2,3,1112,14,1522,23,2425,26,27353, 4, 9,16, 2128, 31,32, 3314, 23,24, 2534, 3634, 35

4, 5 B, c2, Dl,F, G, H

4, 9, B, Cl, Dl,16,18, F, G, H20, 21

1,2 B, Cl, C2,6, 1, C3, Dl, F,17, 18, G, H19, 30

S-46

St. Louis River

TOWNSHIP

49N50N

50N51N

51N

RANGE

17w17w

18W18W

19w

SECTION

3,4, 107, 15,16, 17,18, 22,26, 27,33, 341, 2, 1227, 28,29, 30,34, 35,3625, 26,27

DESIGNA-USE

B, c2, c3,Dl, D2, E2,F, G, H

* Potential Outstanding Reservation Resource Water

Waters not listed above will have the following designated uses:B, C2*, Dl, F*, G*, H* (*if open water present).

24

S-46

IIIIIIIIIIIIIIIII

CHAPTER5

SAMPLING AND ANALYSIS

Section 501 Sample Collection. Preservation and Analysis

Sample collection, preservation and analysis used to determinewater quality and to maintain the standards set forth in the WaterQuality Standards shall be performed in accordance with proceduresprescribed by the latest editions of any of the followingauthorities

a. Lake and Reservoir Bioassessment and Biocriteria.Technical Guidance Document, U.S. EnvironmentalProtection Aaencv, Mav, 1995;

b. Bioloaical Criteria. Technical Guidance for Streams andSmall Rivers. Revised Edition, U.S. EnvironmentalProtection Aaencv, Mav 1996. EPA 822-B-96-001;

c . Raoid Bioassessment Protocols for Use in Streams andRiver, Benthic Macroinvertebrates and Fish. U.S.Environmental Protection Aoencv. Mav, 1989, EPA/440-4-89/001; and

d. EPA Guidelines Establishina Test Procedures for theAnalvsis of Pollutants, Clean Water Act, 40 C.F.R. 136.

25

S-46

IIIIIIIIIIIIIIIIII

I

C - 6

WATERQUALITY STANDARDSAND CRITERIA

Section 601 Awlicabilitv

If the maximum permissible levels of a substance as set forthin Appendix 1, Water Quality Standards Applicable to A, B, Cl, Dland D2 Designated Waters are exceeded in any waters of the Fond duLac Reservation, it shall be considered indicative of a pollutedcondition which is actually or potentially harmful, detrimental orinjurious with respect to the designated uses and shall thereforebe considered a violation of this Ordinance.

The ambient water quality standards in Appendix 1 arestandards for the protection of aquatic life, human health, andwildlife from the GLI pollutants. The standards for a GLIpollutant include the CS, MS, and FAV. Some pollutants do not havean MS or an FAV because of insufficient data. For thesepollutants, Tier II numeric criteria will be calculated accordingto GLI methodology. The daily human consumption of fish caught byFond du lac Band mambers is assumed to be 0.060 kg/day. Inaddition to these standards, the standards contained in 40 C.F.R.Part 141, subparts B & G and Part 143 shall be applicable to thesurface waters of the Reservation.

Some of the GLI pollutants listed in this Chapter have bothaquatic life and human health standards and four of the GLIpollutants have wildlife standards, as provided in tables 1 to 4 ofthe GLI Guidance. The most stringent chronic aquatic life, humanhealth, or wildlife standard listed is the applicable standardexcept when a less stringent chronic or maximum standard applieswhen setting an effluent limitation. For any aquatic life, humanhealth, or wildlife chronic standard, a blank space in thefollowing tables means no GLI standard is available and the moststringent listed chronic standard is applicable. For the aquaticlife MS and FAV, blank spaces mean the GLI guidance lists no MS orFAV.

Standards for metal are expressed as total metal but must beimplemented as dissolved metal standards, using appropriateconversion factors. Standards for GLI pollutants followed by (TH)or (pH) vary with total hardness or pH. The formulas for thesestandards are found in Appendix 2.

Bacteriological standards can be found in Appendix 3.

2 6

S-46

CHAPTER7

SITE-SPECIFIC WATER QUALITY STANDARDS OR CRITERIA

Section 701 Applicability

This Section applies when a discharger requests a site-specific criterion or a site-specific modification to a standard,or the Reservation Business Committee determines that a site-specific criterion or modification is necessary to protectendangered or threatened species under Section 705, or highlyexposed subpopulations under Section 707. Site-specific criteriaor modifications to standards must be protective of designated useand aquatic life, wildlife and human health. Site-specificcriteria or modifications must be preceded by a site-specific studyof the effects of local environmental conditions on aquatic life,human health, or wildlife toxicity, and how these effects relate tothe calculation of standards or bioaccumulation criteria. Aquaticlife impact analysis must be conducted according to the EPA methodsin Chapter 3 of the U.S. EPA Water Quality Standards Handbook,Second Edition (EPA-823-B-94-005a, August 1994), which is adoptedand incorporated by reference. The Reservation Business Committeeshall approve the site-specific study and, upon approval, theReservation Business Committee shall use the study data to developeach site-specific criterion or standard, which then shall besubmitted to EPA for approval.

Section 702 Endanaered and Threatened Snecieq

The Reservation Business Committee shall apply the provisionsin items A to C when modifying a standard or developing a site-specific criterion:

a . Any site-specific modifications that result in lessstringent standards or site-specific criteria must notjeopardize the continued existence of endangered orthreatened species listed or proposed under Chapter 6134or Section 4 of the Endangered Species Act (ESA), 16U.S.C. 5 1533, or result in the destruction or adversemodification of such species' critical habitat.

b. More stringent modifications or site-specific criteriamust be developed to protect endangered or threatenedspecies listed or proposed under Chapter 6134 or Section4 of the ESA where the water quality jeopardizes thecontinued existence of such species or results in the

27

S-46

IIIIIIIIIIIIIIIIIII

destruction or adverse modification of such species'critical habitat.

C. More stringent modifications or site-specific criteriamust also be developed to protect candidate (Cl) speciesbeing considered by the U.F. Fish and Wildlife Servicefor listing under Section 4 of the ESA, where suchmodifications are necessary to protect such species.

Sect ion 703 Auuatic L i f e

The Reservation Business Committee shall modify an aquaticlife standard to a more stringent or less stringent site-specificstandard, or determine a site-specific criterion, based upon theresults of a site-specific study completed according to Section 701if the study demonstrates that:

a. The local water quality characteristics, such as pH,hardness, temperature, and color, alter the biologicalavailability or toxicity of a pollutant;

b. Local physical and hydrological conditions exist thatalter the toxicity of a pollutant; or

C . The sensitivity of the aquatic organisms that occur atthat site differs from the species actually used indeveloping the standards or criteria. The taxa thatoccur at the site cannot be determined merely by samplingdownstream and/or upstream of the site at one point intime. The phrase "occur at the site" does not includetaxa that were once present at the site but cannot existat the site now due to permanent physical alteration ofthe habitat a the site. It does include the species,genera, families, orders, classes, and phyla that:

1. Are usually present at the site;2. Are present at the site only seasonally due to

migration;3. Are present intermittently because they

periodically return to or extend their rangesinto the site;

4. Were present. at the site in the past, are notcurrently present at the site due to degradedconditions, and are expected to return to thesite when conditions improve; or

5. Are present in nearby bodies of water, are notcurrently present at the site due to degradedconditions, and are expected to be present atthe site when conditions improve.

If items A, B or C indicates that thepollutant is more toxic at the site ororganisms are more sensitive, or if additional

28

S-46

protection is necessary to maintain designatedaquatic life uses, the Reservation BusinessCommittee shall calculate a more stringentsite-specific standard or criterion. If itemA, B or C indicates that the GLI pollutant isless toxic at the site or organisms are lesssensitive than those used in the calculationof the standard or criterion, and neither item

A, B nor C indicate greater toxicity, theReservation Business Committee shall calculatea less stringent site-specific standard orcriterion.

Section 704 Wildlife

The Reservation Business Committee shall modify a wildlifestandard to a more stringent or less stringent site-specificstandard, or determine a site-specific criterion, based upon theresults of a site-specific study completed according to Section701. More stringent site-specific water quality standards orcriteria shall be developed when a site-specific bioaccumulationfactor is derived which is higher than the systemwide BAF. Lessstringent site-specific water quality standards or criteria shallbe developed when a site-specific BAF is derived which is lowerthan the systemwide RAF. The Reservation Business Committee'smodification evaluation shall evaluate both the mobility of theprey organisms and wildlife populations in defining the site forwhich the criteria or modified standards are developed. Inaddition, for less stringent site-specific water quality standardsor criteria to be applied in a permit there must be a demonstrationby either the discharger or the Reservation Business Committeethat:

a. Any increased uptake of the toxicant by prey speciesutilizing the site will not cause adverse effects inwildlife populations; and

b. Wildlife populations utilizing the site or downstreamsurface waters of the state will continue to be fullyprotected.

Section 705 Site-SPecific Modifications to Protect Threatenedor Endsnaered SPecies

The Reservation Business Committee shall modify both aquaticlife and wildlife standards or develop criteria on a site-specificbasis to protect threatened or endangered species where the waterquality jeopardizes the continued existence of such species orresults in the destruction or adverse modification of such species'critical habitat. The provisions in items A and B apply to site-

29

S-46

IIIIIIIIIIIIIIIIIII

specific standards or criteria to protect endangered or threatenedspecies:

a. Site-SpeCifiCmodifications to aquatic life standards, orsite-specific criteria, shall be calculated by theReservation Business Committee when one of the followingmethods is applicable:

1. If the species mean acute value for a listedor proposed species, or an applicablesurrogate of such species, is lower than thecalculated FAV, the lower species mean acutevalue must be used instead of the calculatedFAV in developing the site-specific criterionor standard.

2 . The site-specific criterion or standard mustbe calculated using the recalculationprocedure for site-specific modifications whenthe sensitivities of organisms used to derivethe GLI pollutant standard or criterion aredifferent from the sensitivities of theorganisms that occur at the site. Therecalculation procedure is described inChapter 3 of the U.S. EPA Water QualityStandards Handbook, Second Edition (EPA-823-B-94-005a), August 19941, which is adopted andincorporated by reference.

3 . If the methods in items (1) and (2) are bothapplicable, the Reservation Business Committeeshall follow both methods to calculate site-specific modifications to aquatic lifestandards or site-specific criteria, thencompare the results and apply the morestringent standards or criteria.

b. For any modifications to wildlife standards or criteria,the Reservation Business Committee shall evaluate boththe mobility of prey organisms and wildlife populationsin defining the site for which standards or criteria aredeveloped and must use the following method to calculatesite-specific standards criteria:

1.

2 .

Substitute appropriate species-specifictoxicological, epidemiological or exposureinformation including changes to the BAF usedin the GLI Guidance methodology;

Use an interspecies uncertainty factor of 1where epidemiological data are available forthe species in question. If applicable,species-specific exposure parameters must bederived using the GLI Guidance methodology;

30

S-46

IIIIIIIIIIIIIIII

I

I,I

3 . Apply an intraspecies sensitivity factor tothe denominator in the effect part of thewildlife equation in the GLImethodology in

Guidanceaccordance with the other

uncertainty factors described in the method;and

4. Compare the resulting wildlife criterion orstandard for the species in question to theclass-specific avian and mammalian wildlifevalues previously calculated 40 C.F.R. PartPart 132, Appendix A, entitled "Great LakesWater Quality Initiative MethodologiesDevelopment of Aquatic

forLife Criteria

Values,"and

as amended through March 12, 1997and apply the lowest of the three as the site:specific standard or criterion.

Section 106 Bioaccumulation Fac,tors

The Reservation Business Committee shall modify the BAFs on asite-specific basis to larger values if data from the site-specificstudy show that a bioaccumulation value derived from localbioaccumulation data is greater than the systemwide value. Site-specific BAFs must be derived using the GLI Guidance methodology.The Reservation Business Committee shall modify BAFs on a site-specific basis to lower values if:

a. The fraction of the total chemical freely dissolved inthe ambient water is less than that used to derive thesystemwide BAFs;

b. Input parameters of the Gobas model, such as the inputstructure of the aquatic food web and the disequilibriumconstant, are different at the site than those used toderive the systemwide BAFs;

C . The percent lipid of the aquatic organisms that areconsumed and occur at the site is lower than that used toderive the systemwide BAFs; or

d. Site-specific, field measured BAFs or biota-sedimentaccumulation factors are determined.

Section 707 Human Heal*

The Reservation Business Committee shall modify human healthstandards or determine criteria on a site-specific basis to provideadditional protection necessary for highly exposed subpopulations.A subpopulation is highly exposed if the dosage of the GLIpollutant is greater for the subpopulation due to increased fishconsumption rates, increased water ingestion rates, or an increased

31

S-46

IIIIIIIIIIIIIIIIIII

BAF. The Reservation Business Committee shall develop lessstringent site-specific human health standards or criteria if thestudy approved under Section 701 demonstrates that:

a. Local fish consumption rates are lower than the rate usedin deriving human health standards or criteria using themethodology provided by 40 C.F.R. Part 132, Appendix C,entitled "Great Lakes Water Quality InitiativeMethodology for Development of Human Health Criteria andValues," as amended through March 12, 1997; or

b. A site-specific BAF is derived under Section 706 which islower than that used in deriving human health standardsor criteria using the methodology provided by 40 C.F.R.Part 132, Appendix C, entitled "Great Lakes Water QualityInitiative Methodology for Development of Human HealthCriteria and Values," as amended through March 12, 1997.

32

S-46

CHAPTER8

MIXING ZONES AND VARIANCES

Section 801 Applicability

For acute and chronic mixing zones,to C shall apply:

the conditions in items A

a . At the edge of an acute mixing zone approved underSection 802, acute aquatic life toxicity must not exceedthe maximum standard or criterion, or 0.3 TUa for WET.If the discharger does not have an approved acute mixingzone demonstration, the Reservation Business Committeeshall apply the FAV, or 1.0 TUa for WET, directly to thedischarge. If acute mixing zones from two or moreproximate sources interact or overlap, the combinedeffect must be evaluated to ensure that applicablestandards and criteria will be met in the area ofoverlap.

b. At the edge of a chronic mixing zone, chronic toxicitymust not exceed the chronic standard or criterion, or 1.0TUc for WET. A chronic mixing zone must equal:

1. Not more than 25 percent of the applicablestream design flows using dynamic models foundin Chapter 4 of the EPA Technical SupportDocument for Water Quality Based ToxicsControl (EPA-505-2-90-001, March,l991), unlessan alternate chronic mixinq zone demonstration

2.

C. Acute andcontinued

is approved under Section-802; or

For lakes, the area of 1O:l dilution ofreceiving water volume to effluent volume,unless a chronic mixing zone demonstrationapproved under Section 802 identifies analternate dilution ratio in which case thechronic mixing zone must equal the areacorresponding to the alternate dilution ratio.The mixing zone in lakes must not exceed thearea of discharge-inducing mixing.

chronic mixing zones must not jeopardize theexistence of endangered or threatened specific. P..~

listed or proposed under Chapter 6134 or Section 4 or meEndangered Species Act, 16 U.S.C. § 1533, or result inthe destruction or adverse modification of such species'critical habitat.

33

S-46

IIIIIIIIIIIIIIIIIII

Section 802 Demonstration Recruirements

The Reservation Business Committee shall approve an acute orchronic mixing zone demonstration if the discharger proposing amixing zone completes a demonstration that complies with items A toN :

a.

b.

C.

d .

e .

f .

g*

h.

1.

j.

k.

1 .

Define the mixing zone size, shape, location of the areaof mixing, manner of diffusion and dispersion, and amountof dilution at the boundaries;

Determine the discharge-induced mixing area for lakedischarges;

For discharge. to a lake, determine the dilution ratio ofreceiving water volume to effluent volume. If thisdilution ratio is other than 10 to 1 and results in amixing zone that is no greater than the area ofdischarge-induced mixing, the calculated ratio must beused in the WLA calculation for lakes;

Document the substrate character and geomorphology of themixing zone;

Ensure that the mixing zone will maintain a zone ofpassage for mobile aquatic life, protect spawning,nursery areas, and migratory routes, and not intersectriver mouths;

Ensure the mixing zone will protect the existence ofthreatened or endangered species;

Document that the mixing zone does not affect drinkingwater intakes;

Document background water quality concentrations;

Show the mixing zone does not promote undesirable aquaticlife or dominance of nuisance species;

Ensure that the mixing zone will not result in thefollowing:

1. . Objectionable deposits formed by settling;2. Floating debris, oil or scum;3. Objectionable taste, odor, color or turbidity;

or4. Attraction of organisms to the area of

discharge.

Prevent or minimize overlapping mixing zones;

Document the ability of the habitat to support endemic ornaturally occurring species;

34

S-46

IIIIIIIIIIIIIIIIIII

m. Assume no GLI pollutant degradation unless both of thefollowing conditions are met:

1. field studies or other information demonstrate thatdegradation of the GLI pollutant is expected tooccur under the full range of environmentalconditions expected to be encountered; and

2. field studies or other information address otherfactors that affect the level of GLI pollutants inthe water column including sediment resuspension,chemical separation, and biological and chemicaltransformation.

n. Show that the mixing zone will not interfere with thedesignated or existing uses of the receiving water ordownstream surface waters.

Section 803 BCC Mixina Zones

After the effective date of this Ordinance, acute and chronicmixing zones shall not be allowed for new and expanded dischargesof BCCs to Reservation waters. Acute and chronic mixing zones forexisting discharges of BCCs must be phased out by March 23, 2007,except under the provisions of items A to E. After the effectivedate of this Chapter for new and expanded discharges and March 23,2007, for existing discharges, WLAs developed under Sections 801and 802 for discharges of BCCs must be set equal to the moststringent applicable water quality standard or site-specificcriterion for the BCC in question. The provisions for exceptionsto the acute and chronic mixing zone phase-out for existingdischarges of BCCs are in items A to E:

a. Mixing zones for BCCs shall be allowed for existingdischarges after March 23, 2007, if the dischargerdemonstrates that the failure to maintain an existingmixing zone would preclude water conservation measuresthat would lead to overall load reductions in BCCsdischarges;

b. Mixing zones shall be allowed for existing dischargesafter March 23, 2007, upon the request of the dischargerif the Reservation Business Committee determines that:

1. The discharger is in compliance with and willcontinue to implement technology-basedtreatment and pretreatment requirements underSections 301, 302, 304, 306, 307, 401 and 402of the Clean Water Act, 33 U-S-C. §§ 1311,1312, 1314, 1316, 1317, 1341, and 1342, and isin compliance with its existing permit WQBBLS,including those based on a mixing zone; and

35

S-46

IIIIIIIIIIIIIIIIIII

2 . The discharger has reduced and will continueto reduce the loading of the BCC for which amixing zone is requested to the maximum extentpossible by the use of cost-effective controlsor pollution prevention alternatives that havebeen adequately demonstrated and arereasonably available to the discharger.

C . In making the determination in item B, the ReservationBusiness Committee must consider:

1.

2 .

3 .

The availability and feasibility, includingcost effectiveness, of additional controls orpollution prevention measures for reducing andultimately eliminating BCCs for thatdischarge, including those used by similardischarges;

Whether the discharger of affected communitieswill incur unreasonable economic effects ifthe mixing zone is eliminated; and

The extent to which the discharger willimplement an ambient monitoring plan to ensurecompliance with water quality standards andcriteria at the edge of any authorized mixingzone or to ensure consistency with anyapplicable TMDL or assessment and remediationplan.

d. Any exceptions to the mixing zone phase-out provision forexisting discharges of BCCs granted under this Sectionmust:

1.

2 .

3 .

4 .

Not result in any less stringent effluentlimitations than those existing on theeffective date of this Ordinance in theprevious permit;

Not jeopardize the continued existence of anyendangered or threatened species listed underChapter 6134 or Section 4 of the EndangeredSpecies Act, 16 U.S.C. 5 1533, or result inthe destruction or adverse modification ofsuch species' critical habitat;

Be limited to one permit term unless theReservation Business Committee makes a newdetermination in accordance with this Sectionfor each successive permit. application inwhich a mixing zone for the BCCs is sought;

Reflect all information pertaining to the sizeof the mixing zone considered by the

3 6

S-46

IIIIIIIIIIIIIIIIIII

Reservation Business Committee under Section2;

5. Protect all designated and existing uses ofthe receiving water;

6. Meet all applicable aquatic life, wildlife,and human health standards and criteria at theedge of the mixing zone for a WLA in theabsence of a TMDL, or, if a TMDL has beenestablished, be consistent with any TMDL orsuch other strategy consistent with thisOrdinance;

7. Ensure the discharger has developed andconducted a GLI pollutant minimization programfor BCCs if required to do so.

8. Ensure that alternative means for reducingBCCs elsewhere in the watershed are evaluated.

e. For each draft permit that would allow a mixing zone forone or more BCCs after March 23, 2007, the fact sheet orstatement of basis for the draft permit, required to bemade available through public notice must:

1. Specify the mixing provisions used incalculating the effluent limitations;

2. Identify each BCC for which a mixing zone isproposed.

Section 804 Variancea

This part applies to pollutant specific variance requests fromindividual point source dischargers to surface waters for WQBELSwhich are included in a permit. This part does not apply to newdischargers, unless the proposed discharge is necessary toalleviate an imminent and substantial danger to public health andwelfare. A water quality standards or criteria variance shall notbe granted if any of the following conditions exist:

a. If it would jeopardize the continued existence of anyendangered or threatened species listed under Chapter6134 or Section 4 of the Endangered Species Act, 16U.S.C. 5 1533, or result in destruction or adversemodification of such species' critical habitat; or

13. If standards or criteria will be attained by implementingeffluent limitations required under Sections 301(b) and306 of the Clean Water Act, 33 USC §§ 1311(b) and 1316,and by the permittee implementing cost-effective and

31

S-46

IIIIIIIIIIIIIIIIIII

reasonable bestmanagementpractices for non-point sourcecontrol.

Section 805 Maximum Time Framq

A variance shall not exceed five years or the term of thepermit, whichever is less.

Section 806 Conditions to Grant

Noting that all variances and site-specific criteria requireapproval by USEPA, the Reservation Business Committee shall granta variance if the following conditions are met:

a. The permittee demonstrates to the Reservation BusinessCommittee that attaining the water quality standards orcriterion is not feasible because:

1.

2.

3.

4.

5.

Naturally occurring pollutant concentrationsprevent attainment of the water qualitystandard or criterion;

Natural, ephemeral, intermittent, or low-flowconditions or water levels prevent theattainment of water quality standards orcriteria, unless these conditions may becompensated for by discharging sufficientvolume of effluent to enable water qualitystandards or criteria to be met withoutviolating water conservation requirements;

Human-caused conditions or sources ofpollution prevent the attainment of waterquality standards or criteria and cannot beremedied, or would cause more environmentaldamage to correct than to leave in place;

Dams, diversions, or other types of hydrologicmodifications preclude the attainment of waterquality standards or criteria, and it is notfeasible to restore the waterbody to itsoriginal condition or to operate themodification in a way that would result inattainment of the water quality standard;

Physical conditions related to the naturalfeatures of the waterbody, such as the lack ofa proper substrate cover, flow, depth, pools,riffles and the like, unrelated to chemicalwater quality, preclude attainment of waterquality standards or criteria: or

38

S-46

IIIIIIIIIIIIII

I

I

I

I

6 . Controls more stringent than those requiredunder Sections 301(b) and 306 of the CleanWater Act, 33 U.S.C. §§ 1311(b) and 1316,would result in substantial and widespreadeconomic and social impact;

b. The permittee shows that the variance conforms withReservation Business Committeeprocedures; and

antidegradation

c. The permittee characterizes the extent of any increasedrisk to human health and the environment associated withgranting the variance, such that the Reservation BusinessCommittee is able to conclude that any increased risk isconsistent with the protection of the public health,safety and welfare.

Section 807 ADDlication and Public Notice

Preliminary determinations regarding variance applicationsubmittals shall be preceded by a public notice in a localnewspaper and a minimum of forty-fiveperiod.

consecutive day commentThe Reservation Business Committee shall also notify other

Great Lakes Tribes and states regarding suchdeterminations.

preliminaryDuring the comment period, any Band member or

other interested persons may request a public hearing prior toadoption of such changes or revisions by the Reservation BusinessCommittee. Upon a public hearing request, the Reservation BusinessCommittee shall by public notice in a local newspaper announce thedate, time and location of such public hearing and said publicnotice shall be published at least forty-five consecutive daysprior to the public hearing. The Reservation Business Committeeshall send a notice of the public hearing to all identifiedinterested and affected persons and parties at least forty-fiveconsecutive days prior to the public hearing. Any reports,documents and data relevant to the discussion at the public hearingshall be available at least thirty days before the hearing.

Section 808 Final Decision

The Reservation Business Committee shall issue a finaldecision regarding variance applications submittals within 90 daysof the public comment period. If a variance is granted, theappropriate permitting authority shall include and incorporate intothe permit the following conditions:

a. An effluent limitation representing currently achievabletreatment conditions based on discharge monitoring whichis no less stringent than that achieved under theprevious permit;

3 9

S-46

Ib. A schedule of compliance activities which indicates

reasonable progress will be made toward attaining waterquality standards or criteria;

c. An effluent limitation sufficient to meet the underlyingwater quality standards or criterion, upon the expirationof the variance, when the duration of theshorter than the duration of the permit;

variance is

d. A provision allowing the appropriate permitting authorityeither independently or at the request of the ReservationBusiness Committee to reopen and modify the permit basedon the Reservation Business Committee triennial waterquality standards revisions applicable to the variance:and

The renewal of a variance is subject to the requirements ofSections 801 to 805.

The Reservation Business Committee shall list all variances tothese standards in a public notice.

e. For BCCs, a GLI pollutant minimization program.

Section 809 Renewal of Variance

Section 810 Notice of Variancea

40

IIIIIIIIIIIIII

I

I

I

I

S-46

IIIIIIIIIIIIIIIIIII

CHAPTER 9

ENFORCEMENT 6 PROSECUTION

Section 901 Enforcement

The Environmental Protection Office of the Fond du Lac Bandshall be responsible for the identification of violations of thisOrdinance, and enforcement of the provisions of this Ordinanceshall be achieved through the issuance of a summons and complaintthrough the Fond du Lac Division of Resource Management.

Section 902 Prosecution

Prosecution for violations of this Ordinance shall be broughtin Fond du Lac Tribal Court by the prosecutor of the Fond du LacBand pursuant to the provisions of this Ordinance and the Fond duLac Civil Code, FDL Ord. #04/92, as amended.

Section 903 Remedieq

a. Civil nenalties. Violation of any provision of thisOrdinance may be punished or remedied by a civil penaltynot to exceed $500. Each day of any continuing violationmay be charged as separate violation, and a separatepenalty may be imposed.

b. Seizure and Forfeiturg. In addition to civil penalty,any personal property which has been used in connectionwith a violation of this Ordinance, including vehiclesand other equipment, may be seized and forfeited insatisfaction of any judgment entered pursuant to thisOrdinance, pursuant to the Fond du Lac Civil Code.

C. Moneterv Damaaes and Iniunctive Relief. In addition tocivil penalty, seizure and forfeiture, the ReservationBusiness Committee may seek, and the Fond du Lac TribalCourt may grant, money damages or injunctive reliefagainst any violator of this Ordinance to compensate fordamages to, or to prevent imminent harm against, any Bandresource caused by the violation.

S-46

CHAPTER10

AMENDMENTS AND SEVERABILITY

Section 1001 Amendraents

The provisions of this Ordinance may be amended by separateordinance and resolution of the Reservation Business Committee.

Section 1002 Severabilitv

If any section, provision, or portion of this Ordinance isadjudged unconstitutional or invalid by a court of competentjurisdiction, the remainder of this Ordinance will not be affectedthereby.

CERTIFICATION

We do hereby certify that .he foregoing Ordinance was dulypresented and adopted by Resolution #1403/98, by a vote of 4 for,Q against, Q silent, with a quorum of 2 being present at a SpecialMeeting of the Fond du Lac Reservation Business Committee held onDecember 10, 1998 on the Fond du Lac Reservation, and subsequentlyamended by Resolution #1286/01, on September 11, 2001.

ChXSARobert B. Peacock, Chairman

APPROVED AS TO FORM:

42

S-46

-T he.%? do not reflect $ lipid adjustment

Appendixl. Standards Specific to Designated Use

Water Quality Standards Applicable to A, B, Cl, Dl and D2 Designated Use

SUbStanCe Units Aquatic AquaticLife Life

Chronic MaximumStandard Standard

csenic, total

Kxlzene

'admium, totalTH)

ug/l

q/1

ug/l

148

APP. 2

340

APP. 2

Waters

hlordane

hlorobenzene

hromium III,ota1 (TX1

.P4/1 I 28 28

ug/l 10 423 846 230 10

ug/1 APP. 2 App. 2 nnn..=r. 2I APP. 2

hromium VI, total q/l 11 1 6 32

opper, total (TH) ug/l APP. 2 APP. 2 APP. 2

yanides* ug/l 5.2 22 44 587

D T P9/1 18

ieldrin P4/1 56000 240000 480000 0.81

,4-Dimethylphenol ug/1 7.1 137 274 336

,4-Dinitrophenol ug/l 71 379 758 51

ndrin US/l 0.036 0.086 0.17 0.0039

exachlorobenzene pg/l I I T 52

exachloroethane W/l 0.75

indane ug/1 0.95 1.9 0.057

UC"ly* ug/1 0.91 1.7 3.4 0.00077

ethylene Chloride US/l 45

ickel, total (TH) ug/l APP. 2 APP. 2 APP. 2

arathion ug/l 0.013 0.065 0.13 I

CBS Iclass) I DS/l I I I I 3.2

entachlorophenol ug/l App. 2 ' APP. 2 APP. 2 0.93PHI

elenium, total w/l 5.0 2 0 4 0

,3,7,8-TCDD pg/l I I I 0.0010

01IElIe us/l 253 1352 2703 3180

WildlifeChronicStandard

11

0.0013

120

0.0031

-

ApplicalIS

ChronicStandarC

2

9.5

APP. 2

11

APP. 2

5.2

11

0.81

2 1

51

0.0039

52

0.75

0.057

0.00077

4 5

APP. 2

0.013

3.2

0.93

5.0

0.0010

253

7.7

19

APP. 2

43

S-46

IWater Quality Standards Applicable to A, B, C2, Dl and D2Waters

substanceII

Units A q u a t i c Aquatic AquaticL i f e

Ii u m a nLife Life

ChronicH e a l t h

Maximum Final ChronicStandard Standard Acute Standard

I I I I I II

* These do not reflect % lipid adjustment

S-46

Water Quality Standards Applicable to B, C2, 123, Dl and D2 Designated use

.rsenic, total

enzene

S-46

IIIIIIIIIIIIIIIII

Appendix 2. Standarfs that vary with Total Hardness (TH) or pH

a. Designated use A, B, Cl, C2, C3, Dl and D2 standards that vary with total hardness (TB)applicable to all surface waters of the Reservation, are listed in this subsection.Total hardness is the sum of the calcium and magnesium concentrations expressed ascalcium carbonate in mg/l. For ambient or effluent total hardness values greater than400 mg/l, 400 mg/l must be used in the calculation of the standard.e exponential function.

Exp. is the base

formula. results in us/l

exP.lo.7852 r1n (TH mg/l)l-2.715)exP.(1.128 I1n (TH mg,l~l -3.6867)e~p.11.128 rln m mg,l)l -2.9935)

formula, results in “S/l

exp. ~0.819/1n (TX mg/1)1+0.6848)exp. l0.819[ln ITH mg/1)1+3.7256)exp. (0.819[ln iTH m9/1)1+4.4187)

exp. (0.8545Iln (TH mg/l)I-1.702)exp. l0.9422[1Il ITH mg/l)l-1.700)exp. (0.9422[1n (TH mg/l)l-1.0069)

fannula, results in us/l

exp. (0.84611n ITH mg/l)l+o.o584)exp. 10.846[1n ITH mg/1)1+2.255)exp. (0.84611n (TH mg/1)1+2.9481)

Eonnula, results in uq,l

exp. i0.847311n(TH q/1)1+0.884)exp. l0.8473[lrl(TH mg/111+0.884)exp. (O.B473ml(TH mg/1)1+1.5772)

Example Standards at hardness of:so m 200 300 400

1.4 2.5 4.2 5.8 7.32.1 4.5 9.9 16 224.1 9.0 20 31 43

Example standards at hardness of:so E 200 300 400

49 86 152 212 2681022 1803 3181 4434 56122044 3606 6362 8867 11223

Example standards at hardness of:so a m 300 400

5.2 9.3 17 24 307.3 14 27 39 5215 28 54 79 103

29 52 94 132 169261 469 843 1188 1516522 938 I.687 2377 3032

Exa"Ple Standards at hardness of:so gg &I 300 400

67 120 216 304 38867 120 216 304 388133 240 431 608 776

b. Designated we An BV Cl, C2, C3, Dl and D2 standards that vary with pH are listed inthis subsection. Exp. is the base e exponential function.

P~IK~&ll0~0-M formula, results in uq/l

Example standards at PH of:6.5 Q 7.5 g& s.5

cs exP. (l.O05[pH]-5.134) 4.0 5.5 5.5 5.5 5.5not to exceed 5.5 ug,l

MS exp. ll.O05[pHl-4.869) 5.3 8.7 14 24 39FAV exp. (1.005[pHl-4.175) 11 17 29 48 79

46

S-46

c . Conversion factors for transforming total metals to dissolved metals.

I Metal Conversion FactorsAcute Chronic

I Arsenic I 1.000 I 1.000

41

S-46

I:IIIIIIIIIIIIIIII

I

I

Appndi* 3. Bacteriological standards

For designated use Dl,'(primary contact recreational) and D2 (secondarycontact recreational) waters of the Reservation, density criteria forthe indicator species E.coli will be used. In bacteriological surveys,the monthly geometric mean is used in assessing attainment of standardswhen a minimum of five samples are collected in a thirty day period.The monthly geometric mean for E.coli shall not exceed 126 organisms/100ml*. When fewer than five samples are collected in a month, densitiesof E.coli shall not exceed 235 organisms per 100 ml in any singlesample.

*source: USEPACalculated to nearest whole number using equation:

(Mean E.coli density) = ~,~illness ti/lOOO + 11.749.40

48

S-46

sonar exhibits #43 - 46 · crystallizer capex/mgd. this estimate (evap/cryst) this estimate (evap...

Documents