statement of need and reasonableness (sonar) · the subject of this statement of need and...

SONAR – ISTS Chapter 7080 of 36

Minnesota Pollution Control Agency

STATEMENT OF NEED AND REASONABLENESS

Proposed Amendments to Rules Governing the Individual Sewage Treatment System Program - Minnesota Rules Chapter 7080


Table of Contents

Statement of Need and Reasonableness

MINNESOTA POLLUTION CONTROL AGENCY

I. INTRODUCTION AND BACKGROUND ....................................................................... 4

II. PROCEDURAL HISTORY ............................................................................................... 4

III. ALTERNATIVE FORMAT............................................................................................... 6

IV. MPCA’S STATUTORY AUTHORITY ............................................................................ 6

V. REGULATORY ANALYSIS............................................................................................. 7

VI. ADDITIONAL NOTIFICATION .................................................................................... 12

VII. CONSIDERATION OF ECONOMIC FACTORS........................................................... 13

VIII. IMPACT ON FARMING OPERATIONS ....................................................................... 15

IX. NOTIFICATION OF THE COMMISSIONER OF TRANSPORTATION..................... 15

X. CONSULT WITH FINANCE ON LOCAL GOVERNMENT IMPACT ........................ 15

XI. MINN. STAT. § 14.127, SUBDIVISION 1 - COST THRESHOLDS............................. 17

XII. STATEMENT OF NEED................................................................................................. 18

XIII. STATEMENT OF REASONABLENESS ....................................................................... 19

A. Reasonableness of the Proposed Rule Amendment as a Whole. ................................ 19

B. Reasonableness of the Amendments to Individual Sections of Rule.......................... 21 1. Part 7080.0020 DEFINITIONS. ........................................................................... 21

(a) Proposed Change – 7080.0020, Subp. 13a ..................................................... 21 (b) Proposed Change – 7080.0020, Subp. 16i ...................................................... 21 (c) Proposed Change – 7080.0020, Subp. 28e ..................................................... 22 (d) Proposed Change – 7080.0020, Subp. 29a ..................................................... 23


2. Part 7080.0110 SITE EVALUATION.................................................................. 24 (a) Proposed Change – 7080.0110, Subp. 4. D. (5).............................................. 24 (b) Proposed Change – 7080.0110, Subp. 4. D. (5) (a) ...................................... 24 (c) Proposed Change – 7080.0110, Subp. 4. D. (5)(a)(i) ................................... 25 (d) Proposed Change – 7080.0110, Subp. 4. D. (5) (a) (ii) ................................ 25 (e) Proposed Change – 7080.0110, Subp. 4. D. (5) (a)(iii) ................................ 26 (f) Proposed Change – 7080.0110, Subp. 4. D. (5) (b) ...................................... 26 (g) Proposed Change – 7080.0110, Subp. 4. D. (5) (c) ...................................... 26 (h) Proposed Change – 7080.0110, Subp. 4. D. (5) (d) i to iv............................. 27 (i) Proposed Change – 7080.0110, Subp. 4. D. (5) (c)v .................................... 27 (j) Proposed Change – 7080.0110, Subp. 4. D. (6)............................................. 27 (k) Proposed Change – 7080.0110, Subp. 4. D. (7)............................................. 28

3. Part 7080.0715 LICENSE CONDITIONS. .......................................................... 28 (a) Proposed Change – 7080.0715, Subp. 3. A. ................................................... 28 (b) Proposed Change – 7080.0715, Subp. 3. A. (1).............................................. 28 (c) Proposed Change – 7080.0715, Subp. 3. A. (2).............................................. 29 (d) Proposed Change – 7080.0715, Subp. 3. A. (3).............................................. 29 (e) Proposed Change – 7080.0715, Subp. 3. A. (3)(a) ......................................... 30 (f) Proposed Change – 7080.0715, Subp. 3. A. (3)(b) ......................................... 30 (g) Proposed Change – 7080.0715, Subp. 3. A. (3)(c) ......................................... 30 (h) Proposed Change – 7080.0715, Subp. 3. A. (3) (d) ........................................ 31 (i) Proposed Change – 7080.0715, Subp. 3. A. (4).............................................. 31 (j) Proposed Change – 7080.0715, Subp. 3. B..................................................... 32 (k) Proposed Change – 7080.0715, Subp. 3. B. (1).............................................. 32 (l) Proposed Change – 7080.0715, Subp. 3. B. (2).............................................. 32 (m) Proposed Change – 7080.0715, Subp. 3. B. (3).............................................. 33 (n) Proposed Change – 7080.0715, Subp. 3. C..................................................... 33

4. Part 7080.0900 ENFORCEMENT ACTION. ...................................................... 34 (a) Proposed Change – 7080.0900, Subp. 1. F. (new).......................................... 34

XIV. LIST OF AUTHORS, WITNESSES AND EXHIBITS ................................................... 34

A. Author ................................................................................................................... 34

B. Witnesses ................................................................................................................... 34

C. Exhibits ................................................................................................................... 34

XV. CONCLUSION................................................................................................................. 36


I. INTRODUCTION AND BACKGROUND The subject of this Statement of Need and Reasonableness (SONAR) is the amendment of certain rules of the Minnesota Pollution Control Agency (MPCA) that govern the Individual Sewage Treatment Systems (ISTS) Program. The purpose of these rules is to prevent the improper location, design, installation, use, maintenance and abandonment of ISTS which could adversely affect water quality and the public health, safety, and general welfare by the discharge of inadequately treated sewage to surface and ground waters of the state. Minnesota Rules chapter 7080 (Minn. R. ch. 7080) currently contains minimum standards and criteria for the location, design, installation, use, maintenance and abandonment of ISTS, a licensing program for ISTS professionals and ISTS ordinance and administrative requirements for local units of government. The MPCA is revising certain portions of this chapter due to a legislative mandate provided by Minnesota Laws 2004, Regular Session, chapter 249, section 1 (Minn. Laws ch. 249). See Exhibit 5. The required changes are to:

- aid in the proper identification of the seasonal saturated soils; - improve the interpretation of variegated colored soils which may or may not indicate

seasonal saturation; and - provide a methodology to resolve soil disputes over the determination of seasonally

saturated soil. These changes are intended to resolve current problems encountered by ISTS professionals in the above mentioned areas during system design and compliance inspections in difficult soil conditions. II. PROCEDURAL HISTORY The proposed rule amendments were developed by MPCA staff in cooperation with interested and affected parties in regard to these proposed changes. It should be understood that a broad rulemaking effort was underway (January 5, 2004) before the legislative mandate was enacted (May 28, 2004) to amend specific rule parts. Therefore, in addition to the public participation process noted in this document, initial concepts and language of these specific proposed amendments were viewed during an exhaustive public participation process by a very large audience. However specific comments were not received on these initial conceptual changes, except what is noted in this document. It should be noted that during the exhaustive public participation process, many people were aware of these specific issues, but the issues did not generate much discussion. See Exhibits 30, 31, 32, 34, and 35. For this specific rule effort, interested and affected parties provided information and suggestions on the proposed changes. The following is a synopsis of those activities specific for this limited rulemaking along with discussions on these issues during the large rulemaking effort.


1. MPCA had discussions with the Honorable Senator Michael Jungbauer - author of Minn. Laws ch. 249 - on various occasions concerning issues related to identification, significance and interpretation of redoximorphic features. These discussions were held:

- during drafting of the bill and bill hearings; - on July 22, 2004, and September 9, 2004, in preparation for three field training

workshops that were held on September 13, 14, and 28, of 2004, for the purposes of identifying and interpreting the problem soil conditions which prompted the legislation. MPCA and Senator Jungbauer observed soil profiles at multiple locations on the Anoka Sand Plain in the East Bethel area. For a complete description please see Exhibit 26;

- during redoximorphic identification and interpretation training held by national

experts in Duluth on March 23, 2005, (Exhibit 27); - on July 6, 2005, for Senator Jungbauer’s review of the proposed amendments

(Exhibit 21); and 2. MPCA sought advice from the agency’s ISTS Advisory Committee (as required by

Minn. Stat. § 115.55) and the Minnesota Association of Professional Soil Scientists (MAPSS) by providing them a draft of the language on June 29, 2005, for comments (Exhibit 7). Comments received are found in Exhibits 13 to 24, and 40.

3. MPCA sought input from the MAPSS on soil issues for the larger rulemaking at

meetings on October 1, 2003, (Exhibit 30) and February 3, 2005, (Exhibit 31) and a field day training (Exhibit 33).

4. MPCA held internal meetings with agency staff at various times throughout this rule

amendment process. 5. MPCA met with University of Minnesota (U of M) staff on July 11, 2005, to review

comments (Exhibits 1 and 14).

The MPCA believes it has provided adequate opportunities for input from knowledgeable and affected parties equal to the degree of the impact of the changes proposed.


III. ALTERNATIVE FORMAT Upon request, this SONAR can be made available in an alternative format, such as large print, Braille, or cassette tape. To make a request, contact Mark Wespetal at the MPCA, Municipal Division, 520 Lafayette Road North, St. Paul, MN 55155-4194; phone (651) 296-9322; fax (651) 297-8676; or e-mail [email protected]. TTY users may call the MPCA at (651) 282-5332 or (800) 657-3864. IV. MPCA’S STATUTORY AUTHORITY The MPCA’s statutory authority to adopt these specific provisions is set forth in Minn. Stat. § 115.55, subd. 3, paragraph (d) items (1) to (3), which provides:

Subd. 3. Rules. (a) The agency shall adopt rules containing minimum standards and criteria for the design, location, installation, use, and maintenance of individual sewage treatment systems. The rules must include: (1) how the agency will ensure compliance under subdivision 2; (2) how local units of government shall enforce ordinances under subdivision 2, including requirements for permits and inspection programs; (3) how the advisory committee will participate in review and implementation of the rules; (4) provisions for alternative systems; (5) provisions for handling and disposal of effluent; (6) provisions for system abandonment; and (7) procedures for variances, including the consideration of variances based on cost and variances that take into account proximity of a system to other systems. (b) The agency shall consult with the advisory committee before adopting rules under this subdivision. (c) Notwithstanding the repeal of the agency rule under which the commissioner has established a list of warrantied individual sewage treatment systems, the warranties for all systems so listed as of the effective date of the repeal shall continue to be valid for the remainder of the warranty period. (d) The rules required in paragraph (a) must also address the following: (1) a definition of redoximorphic features and other criteria that can be used by system designers and inspectors;


(2) direction on the interpretation of observed soil features that may be redoximorphic and their relation to zones of seasonal saturation; and (3) procedures on how to resolve professional disagreements on seasonally saturated soils. These rules must be in place by March 31, 2006.

Under this statute, the MPCA has the necessary statutory authority to adopt the proposed changes. In 1994, the Legislature granted authority to the MPCA to write standards for ISTS. The 1994 law was signed by the Governor on May 10, 1994. Subsequent revisions to Minn. Stat. § 115.55 occurred and were subsequently incorporated into Minnesota rules and did not impact the rulemaking authority provided under Minn. Stat. § 115.55, subd. 3. On May 28, 2004, the Governor signed into law revisions to Minn. Stat. § 115.55 subd. 3, thereby modifying the original rulemaking authority. Since no effective date was provided, the Governor’s signature date is the effective date. Under the above cited statute, the MPCA has the necessary statutory authority to adopt the proposed changes. Original statutory authority was adopted and effective before January 1, 1996, but rulemaking authority was modified on May 28, 2004, therefore Minn. Stat. § 14.125 applies. The proposed rule will be enforced in accordance with the authority provided to the MPCA by Minn. Stat. §§ 115.071 and 116.072. The MPCA has general authority to enforce its rules under these statutes. If approved, the changes to the existing rule will be enforceable by the MPCA. V. REGULATORY ANALYSIS Minn. Stat. § 14.131, sets out six factors for a regulatory analysis that must be included in the SONAR. Paragraphs (1) through (6) below quote these factors and then provide the MPCA’s response. Paragraphs (7) and (8) address additional requirements listed in Minn. Stat. § 14.131. Paragraph (9) addresses requirements in Minn. Stat. § § 116.07. 1. “A description of the classes of persons who probably will be affected by the proposed

rule, including classes that will bear the costs of the proposed rule and classes that will benefit from the proposed rule.”

The classes of persons who will potentially be affected by the proposed rule changes are:


(1) ISTS owners and future owners (residential and commercial); (2) Local units of government with ISTS ordinances (counties, townships and cities); (3) ISTS licensed businesses; (4) MPCA; (5) Registered ISTS professionals; and (6) Citizens of Minnesota.

In general, the MPCA believes that the proposed changes will benefit citizens of Minnesota, owners, and future owners of systems by protecting underground sources of drinking water without undue costs by the correct determination of the seasonally saturated soil layers for system design and compliance. In other words, the clarifying language will assist ISTS professionals in the correct identification of the depth to the seasonally saturated soil, so ground water can be protected from contamination by the accurate choosing of the most cost-effective design allowed. It should be understood that the rule amendments are formalizing informal dispute resolution processes commonly utilized by local units of government. It should also be understood that the clarifying language pertaining to identification and interpretation of redoximorphic features is intended to lessen the number of disputes that currently arise.

2. “The probable costs to the MPCA and to any other agency of the implementation and

enforcement of the proposed rule and any anticipated effect on state revenues.”

Problematic soil conditions currently require the MPCA and U of M to spend resources providing technical ISTS assistance to help local permitting authorities resolve disputes related to these types of soils. Local permitting authorities must already deal with resolving issues related to ISTS designs before issuing approval for ISTS designs within their jurisdiction. It is anticipated that the proposed amendments will clarify the identification and interpretation of redoximorphic features, so that the soil will be accurately and consistently analyzed by ISTS professionals. Clarifying the identification/interpretation of redoximorphic features should save resources for the MPCA, U of M, local permitting authorities, and the industry.

The rule amendments should not have any impact on state revenue. The MPCA’s ISTS Program relies on licensing fees and septic tank fees. These amendments will not change the fees collected.


3. “A determination of whether there are less costly methods or less intrusive methods for achieving the purpose of the proposed rule.”

The purpose of the amendments is to aid ISTS professionals in the identification and interpretation of redoximorphic features and to fairly and correctly resolve disputes that arise from differing seasonally saturated soil determinations. The misidentification of redoximorphic features (too conservatively) will result in increased costs due to over design or the unnecessary replacement of existing systems which are truly compliant. The misidentification of redoximorphic features (too liberal) will result in unacceptable contamination of ground water with sewage contaminants. The lack of methods to resolve soil disputes results in unresolved situations which prevent the sale of existing homes or the issuing of permits for construction of new dwellings. The MPCA has been legislatively mandated by Minn. Laws ch. 249 to amend these certain ISTS rules as needed and appropriate. Therefore, no other method of regulation was explored.

4. “A description of any alternative methods for achieving the purpose of the proposed

rule that were seriously considered by the agency and the reasons why they were rejected in favor of the proposed rule.”

Based upon a legislative mandate for rule amendment, no alternative method for achieving the purpose of the proposed rule was considered. Furthermore, no alternative methods were proposed by any interested parties.

5. “The probable costs of complying with the proposed rule including the portion of the

total costs that will be borne by identifiable categories of affected parties, such as separate classes of government units businesses, or individuals.”

The cost for complying with the rule will result in increased costs to:

(1) ISTS owners and future owners (residential and commercial):

Increased costs will occur for owners of ISTS if a third party is needed to provide expertise and information on issues surrounding a soil redoximorphic feature dispute.

(2) Local units of government with ISTS ordinances (counties, townships and cities) Increased cost will occur for this group for time and expense to visit the site, meet

with disputing parties and to review documents for the purposes of dispute resolution.


(3) ISTS licensed businesses:

Increased costs will occur for this group for time and expense to re-visit the site, meet with the parties involved and to hire a third party, if necessary. These costs will likely be passed on to group one.

(4) MPCA:

Increased costs will occur for the MPCA for time and expense to visit the site, meet with disputing parties and review documents for the purposes of dispute resolution, as necessary.

(5) Registered ISTS professionals: Clarification to the redoximorphic features should not result in cost increases to registered professionals as the amendments are similar to what is currently taught in the U of M training workshops (Exhibit 25). Increased costs will result for registered professionals for the time required to familiarize themselves with the new dispute resolution requirements. (6) Citizens of Minnesota: There should be little to no additional costs to the general citizenry of the state. This is due to the fact that state and local programs charged to carry out the additional tasks are largely funded by fees associated with ISTS related work activities and not general taxation.

For a more detailed description of the costs, please refer to section X. 6. “The probable costs or consequences of not adopting the proposed rule, including those

costs or consequences borne by identifiable categories of affected parties, such as separate classes of government units, businesses, or individuals.”

The cost for not adopting the proposed rules is that ambiguity will continue to exist in the identification and interpretation of redoximorphic features, which may result in over or under design of systems and disputes. The under-design of an ISTS will result in the inadequate protection of ground water which can result in impacts to nearby surface waters or underground sources of drinking water. Misidentification or misinterpretation of soil features resulting in over-design will result in unnecessary costs to be incurred by ISTS owners.


7. “An assessment of any differences between the proposed rule and existing federal regulations and a specific analysis of the need for and reasonableness of each difference.”

Federal regulations do not address the use of redoximorphic features for ISTS design and compliance nor do they address seasonally saturated soil issues. However, the redoximorphic features criteria is taken from other federal programs (soil survey and wetland delineations).

8. “Describe how the agency, in developing the rules, considered and implemented the

legislative policy supporting performance-based regulatory systems set forth in section 14.002.” Minn. Stat. § section 14.002 states:

…the legislature finds that some regulatory rules and programs have become over prescriptive and inflexible, thereby increasing costs to the state, local governments, and the regulated community and decreasing the effectiveness of the regulatory program. Therefore, whenever feasible, state agencies must develop rules and regulatory programs that emphasize superior achievement in meeting the agency’s regulatory objectives and maximum flexibility for the regulatory party and the agency in meeting those goals.

The proposed amendments are specific in their nature to meet the legislative requirements of Minn. Stat. § 115.55 and Minn. Laws ch. 249. Therefore, the use of a performance approach in this area does not readily apply.

9. Minnesota Statutes Section 116.07 Requirements

Minn. Stat. § 116.07, subd. 6 states:

In exercising all its powers the pollution control agency shall give due consideration to the establishment, maintenance, operation and expansion of business, commerce, trade, industry, traffic, and other economic factors and other material matters affecting the feasibility and practicability of any proposed action, including, but not limited to, the burden on a municipality of any tax which may result therefrom, and shall take or provide for such action as may be reasonable, feasible, and practical under the circumstances.

It is anticipated that the proposed rule will have few negative impacts on any aspects or sectors of the ISTS industry. In addition, it is anticipated that the rule revisions will provide benefits to ISTS owners, ISTS businesses and local permitting authorities. This benefit will be alleviating ambiguity which will foster correct design and compliance decisions, lessen soil disputes, and quicker resolution of future soil disputes.


VI. ADDITIONAL NOTIFICATION Minn. Stat. § 14.131 requires that an agency include in its SONAR a description of its efforts to provide additional notification to persons or classes of persons who may be affected by the proposed rule or must explain why these efforts were not made. On January 5, 2004, the MPCA published notices requesting comments on a large ISTS rulemaking effort in the State Register (Exhibit 12). The same notices were also placed on the MPCA’s Public Notice web site from January 1, 2004, to September 9, 2004. Minn. Laws ch. 249 was signed on May 28, 2004, requiring specific changes. In response to this law, the MPCA drafted initial language to amend the saturated soil/redoximorphic features issues and to a lesser extent, the dispute resolution issue. That initial language underwent an extensive review process that will not be detailed in this document. In late June 2005, the MPCA could foresee that the large rulemaking effort, which included the legislative mandated changes, was not going to meet the legislative deadline of March 31, 2006. At that time, the MPCA split the rulemakings into the legislatively mandated changes and the separate, larger rulemaking effort. To highlight this change, the MPCA issued a separate notice requesting comments on July 18, 2005, (Exhibit 36). The MPCA also re-contacted the U of M, the ISTS advisory committee and the MAPSSto specifically review the amendments (Exhibit 7). Three factors influenced the MPCA’s decision to not provide extensive additional notice. First, the very limited scope of the amendments. Second, many of the changes are clarifications of current rule and not substantive changes. Lastly, in many cases the amendments are already practiced by the industry. However, the MPCA published the required notice in the State Register on July 18, 2005, and has sent a copy of that notice to all local governmental units which have an ISTS ordinance. The MPCA intends to send a copy of the Notice of Intent to Adopt and the proposed rule amendments to the following people and organizations:

A. All parties who have registered with the MPCA for the purpose of receiving notice of

rule proceedings, as required by Minn. Stat. § 14.14, subd. 1a; B. All relevant staff, managers, and supervisors of the MPCA, Minnesota Department of

Health (MDH), Minnesota Board of Water and Soil Resources (BWSR), and Minnesota Department of Natural Resources (DNR);

C. All individuals and representatives of associations the MPCA has on file as interested and

affected parties (Exhibit 37); and


D. The chairs and ranking minority party members of the legislative policy and budget committees, with jurisdiction over the subject matter of the proposed rule amendments, will receive a copy of the proposed rule amendments, SONAR, and notice as required Minn. Stat. § 14.116. This statute also states that if the mailing of the notice is within two years of the effective date of the law granting the agency authority to adopt the proposed rules, the agency must make reasonable efforts to send a copy of the notice and SONAR to all sitting house and senate legislators who were chief authors of the bill granting the rulemaking. This applies because Minn. Laws ch. 249 was signed on May 28, 2004.

A preliminary draft of the amendments was posted on the MPCA’s Web site on July 6, 2005, (Exhibit 4), and an article was placed in the Minnesota Onsite Sewage Treatment Contractor’s Association newsletter (Exhibit 39). In addition, a copy of the notice, proposed rule amendments and SONAR will be posted on the MPCA’s Public Notice Web site at (www.pca.state.mn.us/news.index.html). Pursuant to Minn. Stat. § 14.14, subd. 1a, the MPCA believes its regular means of notice, including publication in the State Register and on the MPCA’s Public Notice web page will adequately provide notice of this rulemaking to persons interested in or regulated by these rules.

VII. CONSIDERATION OF ECONOMIC FACTORS In exercising its powers, the MPCA is required by identical provisions in Minn. Stat. § 116.07, subd. 6, and Minn. Stat. § 115.43, subd. 1, to give due consideration to:

...the establishment, maintenance, operation and expansion of business, commerce, trade, industry, traffic, and other economic factors and other material matters affecting the feasibility and practicability of any proposed action, including, but not limited to, the burden on a municipality of any tax which may result there from, and shall take or provide for such action as may be reasonable, feasible, and practical under the circumstances.

Effects to State Government The estimated cost to the MPCA to adequately administer and enforce this proposed rule is approximately $20,000/year (please see section X). This cost consists primarily of the review of documentation and site visits needed to resolve the disputed matters. This figure does not include any follow-up enforcement actions, if needed.


The MPCA anticipates minor cost increases to other state agencies (DNR and Minnesota Department of Transportation [MNDOT]), but most cost increases will impact the MPCA. The amendments will not change the design or maintenance of state owned ISTS systems, such as at MNDOT highway rest areas and DNR campgrounds. The amendments do not substantially change the focus and structure of the MPCA’s enforcement and education program. There may be a slight increase in staff time necessary to assist local permitting authorities in dispute resolution and the time spent on enforcement against ISTS professionals who have been found through the dispute process to require enforcement action.

These rule revisions do not affect fees and, therefore, should have no impact on state revenues.

The MPCA is required under Minn. Stat. § 14.131 to consider probable costs to other agencies. The proposed changes should have no affect on costs to other agencies in implementing and enforcing this chapter

The MPCA knows of no other less costly method than what is proposed in these revisions to meet the requirements of Minn. Stat. § 115.55 and Minn. Laws ch. 249.

As stated previously, the MPCA is mandated in Minn. Stat. § 115.55 and Minn. Laws ch. 249 to adopt rules governing ISTS. Therefore, the MPCA did not consider alternative methods of regulation other than these rules. The MPCA further believes that case-by-case adoption of regulatory policy would be much more resource intensive and much less efficient and effective.

Design Standards for ISTS The requirements of this chapter have been used for many years in many locations for dwellings and appear to be a cost-effective method to treat and dispose of sewage in rural areas. With the average cost of a system being $6,500 with $1,200 of operation and maintenance costs over the life of the system (25 years), the cost of treatment and disposal of the sewage is approximately $0.004/gallon (based on 225 gallons/residence/day). See Exhibit 42. The MPCA does not anticipate much of an additional cost to homeowners and businesses with existing ISTS as a result of any of the proposed changes. This is due to the infrequent nature of disputed soil determinations. For those who find themselves in the midst of a disputed soil issue, there may be no additional cost if the ISTS designer/inspector does not charge for additional work or may cost up to $1,000 if the designer/inspector does charge for return site visits and a professional soil scientist is involved. This would be a one-time fee over the life of the system.


ISTS Businesses

The proposed amendments will have little economic impact on the businesses that design, install, inspect or maintain ISTS above what is currently required in the rule and is currently done to resolve disputes. There may be some increase in costs if a business does not resolve disputes in the manner described in the amendments. Minnesota’s Total Economy The MPCA anticipates that changes to these rules will not have a measurable impact on Minnesota's total economy. VIII. IMPACT ON FARMING OPERATIONS Minn. Stat. § 14.111 requires an agency to provide a copy of the proposed rule changes to the commissioner of agriculture no later than thirty days prior to publication of the proposed rule in the State Register, if the rule has an impact on agricultural land. The proposed amendments have no impact on farming operations over and above any impacts the rule may currently have, as no site criteria is changing which would shift land use patterns from farming operations to other types of developments. IX. NOTIFICATION OF THE COMMISSIONER OF TRANSPORTATION Minn. Stat. § 174.05, requires the MPCA to inform the Commissioner of Transportation of all rulemakings that concern transportation, and requires the Commissioner of Transportation to prepare a written review of the rules. The proposed changes should not result in any change in the amount, type of material transported, or the weight of an individual load on Minnesota’s roadways. The MPCA believes that the proposed amendments will not impact MNDOT activities or transportation concerns; therefore the Commissioner was not notified of this rulemaking. X. CONSULT WITH FINANCE ON LOCAL GOVERNMENT IMPACT Minn. Stat. § 14.131 requires the MPCA to consult with the Department of Finance to help evaluate the fiscal impact and benefits of proposed rules on local governments. In accordance with the interim process established by the Department of Finance on June 21, 2004, the MPCA provided the Department of Finance with a copy of the proposed rule and SONAR at the same time as the Governor’s Office. This timing allowed the fiscal impacts and fiscal benefits of a proposed rule to be reviewed by the Department of Finance concurrent with the Governor’s Office review (up to 21 days).


It is difficult to determine the cost impact to local permitting authorities. It is presumed that most local permitting authorities are currently incurring costs related to dispute resolution. The MPCA believes that these costs would be reduced as a result of the proposed requirement that disputing parties first meet on site by themselves to try to resolve their differences before involving the local permitting authority. If the disputing parties are able to resolve differences on their own, the local permitting authority will not need to use its limited resources trying to resolve issues for them. As discussed on pages 28 to 29 of the SONAR, many of the disputing parties have never met face-to-face or on the site to discuss issues before they escalate to requiring local permitting authority resolution. Note that the MPCA’s cost estimate for this SONAR for local permitting authorities presumes that the local permitting authority will be involved in all disputes. Below is an estimated cost to local permitting authorities and others.

New System Design

Compliance Inspection of

Existing Systems

1. Dispute Estimates Total number of activities conducted/year (staff estimate) 17,000 8,000

Percent disputed (staff estimate) 3% 5% Total in dispute 510 400

2. Cost to LUG’s

Number that LUG will investigate and/or solve 510 400 Time required to investigate and solve and/or solve

(hours) 8 8

Hourly salary $40 $40 Cost to LUG/year $163,200 128,000

3. Cost to ISTS Licensed Businesses

Estimated number of disputes requiring disputing parties to meet on-site with another disputing party

510 400

Time required to investigate and attempt resolution by both disputing parties (hours)

8 (4 hours per business)

8 (4 hours per business)

Hourly salary $50 $50 Cost for initial visit $204,000 $160,000

Estimated number of disputes requiring professional soil

scientist review (staff estimate) 50 150

Time required to investigate (hours) 8 8 Hourly salary $75 $75

Cost for professional soil scientist review $30,000 $90,000


New System Design

Compliance Inspection of

Existing Systems

Estimated number of disputes where disputing parties will desire to observe the work of a professional soil scientist

50 150

Time required to observe work of professional soil scientist (hours)

8 (4 hours per

business)

8 (4 hours per

business) Hourly salary $50 $50

Cost for observing professional soil scientist $20,000 $60,000

4. Cost to MPCA Estimated number of soil disputes MPCA will

investigate/review 50 50

Hours required to investigate and solve 8 8 Hourly salary $50 $50

Cost to MPCA/year $20,000 $20,000

Subtotal of cost for all parties $437,200 $458,000 Total cost of amendments for all parties $895,200

The MPCA estimates that higher costs are being incurred by the currently informal processes of dispute resolution, because third parties are thought to be involved early in the process. In addition, the MPCA is aware of costs involved when a dispute is litigated in a court-of-law. The clarified saturated soil criteria, along with the requirements that disputing parities need to meet on-site before invoking a third party, is anticipated to lower the costs of disputes. XI. MINN. STAT. § 14.127, SUBDIVISION 1 - COST THRESHOLDS Minn. Stat. § 14.127 require the MPCA to assess the potential economic impact to small businesses of complying with this proposed rule amendment. The statutory provision is as follows:

An agency must determine if the cost of complying with a proposed rule in the first year after the rule takes effect will exceed $25,000 for: (1) any one business that has less than 50 full-time employees; or (2) any one statutory or home rule charter city that has less than ten full-time employees. For purposes of this section, "business" means a business entity organized for profit or as a nonprofit, and includes an individual, partnership, corporation, joint venture, association, or cooperative.

The following is offered to fulfill the requirements of Minn. Stat. § 14.127:


1. Redoximorphic Features Provision There should be no additional costs for businesses or local permitting authorities associated with the clarifications provided on the identification and interpretation of redoximorphic features. 2. Soil Dispute Resolution Small Business Costs The overall cost impact to small businesses from the proposed dispute resolution methods have been estimated in Section X. Since an ISTS business may be required to meet more than once on the site with a disputing party, the lost time and expense for a business to comply with this provision is estimated to be approximately $200 per dispute. If after this initial group meeting, a professional soil scientist is needed, an additional $600 cost is estimated for the time and expense of the professional soil scientist. If one or more of the disputing parties wishes to observe the third party’s work another $200 per disputing party could be added for time lost and travel to observe the professional soil scientist. Therefore, the range of possible costs could be from $200 to $1,000 per dispute. Therefore, to exceed the $25,000 cost threshold for a small business, the business would have to be involved in 25 to 125 soils disputes per year, which seems highly unlikely for a competent professional. Local Permitting Authorities The overall cost impact to local permitting authorities from the proposed dispute resolution methods have been estimated in Section X. Section X estimates that the cost to a local permitting authority if it becomes involved in a dispute to be $320 per dispute. Therefore, to exceed the $25,000 cost threshold for a local permitting authority, the local permitting authority would have to be involved in 78 soils disputes per year. It seems unlikely that a local permitting authority would be involved in 78 disputes per year, since the average number of permits issued per county in 2003 was 55 (Exhibit 41) and an average number of existing system compliance inspections is estimated to be approximately 40 per county. Therefore, 78 out of 95 design/compliance inspections would need to be disputed for the cost threshold to be exceeded. XII. STATEMENT OF NEED Minn. Stat. § ch. 14, requires the MPCA to make an affirmative presentation of facts establishing the need for and reasonableness of the rules as proposed. In general terms, this means that the MPCA must not be arbitrary or capricious in proposing rules. However, to the extent that need and reasonableness are separate, “need” has come to mean that a problem exists that requires administrative attention, and “reasonableness” means that the solution proposed by the MPCA is appropriate. The need for the rule is described below.


Current Minn. R. ch. 7080 contains minimum standards and criteria for the location, design, installation, use, maintenance and abandonment of ISTS, a licensing program for ISTS professionals and administrative requirements for local units of government. Overall, Minn. R. ch. 7080 is working well in serving the needs of the ISTS industry, homeowners and regulators. However, the MPCA has a specific need to amend Minn. R. ch. 7080 in order to comply with Minn. Laws ch. 249. That law applies to Minn. Stat. § 115.55 subd. 3 (d) (1) to (3) and specifically mandated the following rule amendments:

d) The rules required in paragraph (a) must also address the following: (1) a definition of redoximorphic features and other criteria that can be used by system designers and inspectors; (2) direction on the interpretation of observed soil features that may be redoximorphic and their relation to zones of seasonal saturation; and (3) procedures on how to resolve professional disagreements on seasonally saturated soils.

XIII. STATEMENT OF REASONABLENESS

Minn. Stat. § ch. 14 requires the MPCA to explain the facts establishing the reasonableness of the proposed rule amendments. “Reasonableness” means that there is a rational basis for the MPCA’s proposed action. The reasonableness of the proposed rule is explained in this section. This section is broken into two main parts: A. Reasonableness as a whole; and B. Reasonableness of the individual rule parts. A. Reasonableness of the Proposed Rule Amendments as a Whole. The ISTS rules (Minn. R. ch. 7080) as a whole are reasonable because they provide minimum standards to reasonably protect public health, safety and the environment from ISTS hazards. An estimated 500,000 Minnesota households rely on ISTS for sewage treatment and disposal. This group of households is extremely diverse. On one end of the spectrum are elderly residents on a small, fixed income, who live in remote locations and who generate very little sewage. On the other end of the spectrum are wealthy individuals with large homes in densely-populated urban areas within city limits. Other groups include: cabin owners along lakeshores, farmers in sparsely-populated areas, and many other individuals.


The MPCA believes that the benefit derived from properly treating sewage is worth the cost. Not bearing the cost results in untreated sewage being discharged onto lawns and ground surfaces, and into tile lines, surface waters and ground waters. These results are clearly evident in areas of Minnesota that have no or poorly enforced regulations and where sewage discharge at ground level is commonplace. It is estimated that the volume of sewage generated from dwellings and businesses not connected to municipal sewage systems is 52.5 million gallons of sewage per day (500,000 unsewered households x 2.1 people/ household x 50 gal/person/day) The public health and environmental cost of improper disposal in rural areas has not be studied in detail and quantified. However, it is known that sewage can contain pathogenic organisms at high concentrations from feces, blood, urine, vomit, phlegm, skin diseases and spoiled food. Untreated sewage that surfaces is foul-smelling, can attract unwanted vectors and vermin, and is generally detrimental to public health, safety, and the environment. Improperly treated sewage can enter surface waters where pathogens and eutrophication by nutrients are concerns. The second concern is that improper subsurface disposal of sewage into the soil can contaminate ground water drinking resources. Contaminated ground water can enter private drinking water wells where it remains untreated before consumption.

Even though the risks of untreated sewage are not quantified, the MPCA feels a significant public health threat would occur if sewage from dwellings is not properly treated and disposed. Properly treating sewage will maintain surface water quality for its many uses and will maintain property values by eliminating nuisance conditions. The main purposes of the rule amendments are stated previously. The legislative mandate is a result of problematic soil conditions that are encountered, for instance in the Anoka Sand Plain. As an illustration, some soils in the Anoka Sand Plain have a unique feature termed lamellea. Lamellea are clay and iron enriched bands in fine sand soils. Lamellea can be problematic for two reasons. First, the banding is of a different color than the inter-lamellea soil, and this variegated soil color pattern is confused with iron concentrations caused by saturated conditions (a redoximorphic concentration). Second, lamellea is spatially variable and varies in thickness and prominence. In areas in which the lamellea is thick and prominent, precipitation is impeded to the point that the soil becomes saturated within and above the lamellea. The question is whether this perching affects the treatment and hydraulic performance of an ISTS. The MPCA believes this perching condition is detrimental to pathogen removal effectiveness of the system and the needed breakdown of the biological clogging mat which forms soil with an ISTS. It is the MPCA’s experience that the soil temperatures of systems placed near saturated soil conditions are lower and contain less oxygen. These conditions impede the breakdown of the clogging mat and lower the infiltration capacity of the soil system.


B. Reasonableness of the Amendments to Individual Sections of Rule. This section addresses the reasonableness of each rule part and attempts to answer questions about what each rule requirement is intended to do, why it is needed, and why it is reasonable. Some rule parts are obvious as far as their need and reasonableness and therefore are only explained briefly, while others are explained in more detail for future rule interpretation. Rule text that remains the same is not discussed, nor are rule provisions that have merely been moved from one rule location to another.

The changes will be presented in italics and the justification appears immediately below the proposed change.

1. Part 7080.0020 DEFINITIONS.

(a) Proposed Change – 7080.0020, Subp. 13a Subp. 13a. Distinct. "Distinct" means a soil color that varies from another color by one or more hues, more than two units of value, or more than one unit of chroma that is not faint as described in subpart 16i. Justification - This language is proposed to define the term “distinct” in relationship to “faint” when describing variegated color patterns in soils. With reference to the definition of faint, it is proposed to have the term “distinct” mean all other color variations. In soil science, the term “prominent” is also used which describes more contrast than distinct. However it is proposed that distinct and prominent contrast be combined because the interpretation of duration and frequency of the seasonally saturated soil for distinct or prominent color variation is the same.

(b) Proposed Change – 7080.0020, Subp. 16i Subp. 16i. Faint. “Faint” means a soil color with the same hue as another soil color but varies from the other color by two or less units of value and not more than one unit of chroma, or a soil color that differs from another soil color by one hue and by one or less units of value and not more than one unit of chroma, or a soil color that differs from another soil color by two units of hue with the same value and chroma. Justification - The degree of the soil color variation is a diagnostic indicator of the frequency and duration of the seasonally saturated soil (Exhibits 6 and 8). Therefore, to make a seasonally saturated soil determination in some soil conditions in Minnesota, faint color contrast needs to be used. Please refer to the justification for part 7080.0110, Subp. 4(D)(5)(a)(iii).


(c) Proposed Change – 7080.0020, Subp. 28e Subp. 28e. Redoximorphic features. "Redoximorphic features" means features formed in saturated soil by the process of reduction, translocation, and oxidation of iron and manganese compounds, or other soil, landscape or vegetative indicators a color pattern in a soil, due to saturated soil conditions, due to loss (depletion) or gain (concentration) of pigment compared to the matrix color, formed by oxidation/reduction of iron and/or manganese coupled with their removal, translocation, or accrual; or a soil matrix color controlled by the presence of ferrous iron. They are described in part 7080.0110, subpart 4, item D, subitem (5). This is commonly known as "mottling." Justification – The use of soil coloration to determine seasonal soil saturation has been used in this chapter since the rule was adopted in 1978. The original term used to describe soil coloration changes due to saturation was “soil mottling.” The term was later changed to redoximorphic features to be current with the changes made to the terms used in soil science. Besides the term change, the definition has also changed over the years. The changes did not reflect changes in the scientific understanding of saturation affects on soil coloration. These past changes were made to more adequately describe the science and physical processes of soil color changes with saturation. This proposed change is no different. The change to the definition of redoximorphic features is to insert the definition of redoximorphic features as described in the United States Department of Agriculture (USDA) Natural Resources Conservation Service Field Book for Sampling and Describing Soils (Exhibit 2). The only change to the USDA definition is the addition of the phrase “due to saturated soil conditions” to make it clear that the soil colors described are caused from saturated conditions. This proposed definition is similar to the definition used by the Soil Science Society of America (Exhibit 3). The purpose of this proposed change is to more adequately describe the physical process and science behind soil color changes. This is proposed to aid those conducting soil borings so they have a better understanding of the process. This is designed to help differentiate between soil color changes due to seasonal saturation and color changes that are not. Justifications for the original definition to identify a soil feature, which would identify seasonal saturation, are found in previous SONARS, see Exhibits 9 – 11. In addition to all Exhibits provided for past SONARS concerning soil color changes due to saturation, Exhibits 6 and 8 are also offered. They are the latest research describing the relationship between the expression of redoximorphic features and frequency and duration of saturation.


(d) Proposed Change – 7080.0020, Subp. 29a Subp. 29a. Seasonally saturated soil. "Seasonally saturated soil" means the highest elevation in the soil that is in a reduced chemical state because of due to soil voids being pores filled with water causing anaerobic conditions. Saturated soil is evidenced determined by the presence of redoximorphic features in conjunction with other established indicators as specified in part 7080.0110, subpart 4, item D, subitem (5) units (d) and (e), or determined by other information scientifically established technical methods or empirical field measurements acceptable to the permitting authority in consultation with the commissioner. Justification – Soil with pores that are completely filled with water (i.e., saturated) do not provide adequate treatment of the contaminants in sewage. In addition, saturated soils hinder effluent movement from the system and hinder the breakdown of the biological clogging mat. Consequently, saturated conditions have been a limiting layer for ISTS since Minn. R. ch. 7080’s adoption in 1978. Justification for using saturated conditions as a limiting layer have been justified in past SONARS of this chapter. (Exhibits 9 - 11) The original term used to describe saturated conditions was “watertable.” This term was later changed to seasonally saturated soils to avoid confusion with deeper underground waters such as aquifers. Besides the term change, the definition has also been clarified over the years. The changes did not reflect changes in the scientific understanding of saturation, they were made to more adequately describe the shallow and seasonal nature of the underground water of concern. This proposed change is no different. The first changes are grammatical for clarity. The additional language of the phrase “anaerobic conditions” is added to aid in the description of the result of saturated conditions because anaerobic conditions provide less effective treatment of sewage contaminants. The change to the last sentence is meant to remove vagueness from and clarify the meaning of the current term “other information.” “Other information” has always been allowed to determine the depth of the seasonally saturated layer in the event that redoximorphic features do not adequately determine the depth to the seasonally saturated soil. The proposed change makes a general statement that other methods, or physical measurements can be used to determine the depth to seasonally saturated soil. However, this is qualified by the fact that the method or measurements be acceptable to the local permitting authority in consultation with the commissioner. It is reasonable to add this qualifier to ensure that any alternative means utilized to determine the depth to seasonally saturated soil should be scrutinized and approved by local permitting authorities to determine if the method will yield an accurate reflection of the frequency and duration of the seasonally saturated soil conditions.


This is necessary because some methods are not scientifically sound, or the measurements could be taken in monitoring wells which have been incorrectly placed or not finished at the correct depth, not read during representative time periods or read during a climatic cycle which is not reflective of typical conditions. For the correct method to determine measurement of the seasonally saturated soil for ISTS design, the MPCA refers those who wish to monitor the variation in the seasonally saturated soil to the Wisconsin Department of Commerce procedure for monitoring the seasonally saturated soil (Exhibit 28).

2. Part 7080.0110 DESIGN PHASE I: SITE EVALUATION.

(a) Proposed Change – 7080.0110, Subp. 4. D. (5) (5) Depth to the seasonally saturated soil for new construction or replacement as determined by redoximorphic features and other indicators, as determined in units (a) to (d): Justification - The addition of the term “other indicators” is to highlight that some of the criteria in this part to determine saturation are really not redoximorphic features by definition. For example, landscape is used to determine the height of saturation, which is really an external soil feature versus an internal soil feature.

(b) Proposed Change – 7080.0110, Subp. 4. D. (5) (a) (a) in subsoils subsoil and parent material, redoximorphic features include: Justification - The proposed rule now highlights that color patterns in non-dark horizons (i.e., topsoil) are not just for subsoil conditions but also for the material found beneath the subsoil. It should be understood that soil color patterns in parent materials are expressed the same as with subsoil. Limiting these color patterns to only subsoil and not parent materials was an oversight in the current rule. The oversight occurred because the rule was focused on making a clear distinction relating to making a seasonally saturated soil determination using redoximorphic features with the overlying topsoil and did not consider making a distinction (or in this case, no substantive distinction) with the underlying parent material.


(c) Proposed Change – 7080.0110, Subp. 4. D. (5)(a)(i) i. distinct iron accumulations as described in part 7080.0020, subpart 13a, or distinct iron depletions as described in part 7080.0020, subpart 13a; or Justification - This is a format change for clarity.

(d) Proposed Change – 7080.0110, Subp. 4. D. (5) (a) (ii) ii. a gleyed or depleted soil colors matrix or mottled color having a chroma of two or less or a depleted matrix or mottled color having a hue of 5Y and a chroma of three or less; or Justification - It is proposed to add the word “gleyed” to this section to highlight that iron compounds have been reduced but not translocated within the horizon or have not been leached to deeper soil horizons. In these cases, the color pattern has more of a bluish or greenish tinge and will become oxidized (or brighten) upon the addition of oxygen when the sample has been extracted during boring. It is proposed to add the word “depleted” to this section to highlight that iron and manganese compounds have been translocated to zones of concentration within the horizon or have been leached to deeper soil horizons or leached from the entire soil profile (i.e., from all soil horizons). This depletion results in the grayish colors described in this section which are the color of the basic mineral grains without the previous coating of iron and manganese compounds. Current item iii is proposed to be moved into item ii for clarity. It was proposed that special language be developed for eluviated horizons. However, since the criteria for subsoil conditions adequately reflect seasonally saturated soil conditions for these horizons, and the color value of these horizons matches those found in subsoil, it is proposed to not include any special reference to eluviated horizons, but that they be judged under the subsoil criteria for seasonally saturated soil.


(e) Proposed Change – 7080.0110, Subp. 4. D. (5) (a)(iii) iii. soil colors having a hue of 5Y and a chroma of three or less faint redoximorphic concentrations or faint depletions in subsoil with a hue of 7.5 YR or redder; Justification - Some northeastern Minnesota soils contain large amounts of iron compounds which make the soil very red. They are commonly known as “red clay soils.” With large amounts of iron compounds, these soils do not strongly express the translocation and re-oxidation or removal of iron compounds as is the case in most Minnesota soils. Therefore, redoximorphic features, indicating a seasonal saturation with a duration and frequency of concern for ISTS operation, are features which are faintly expressed. Therefore, it is scientifically accepted that a faint expression of redoximorphic features does indicate a frequency and duration of seasonally saturated conditions of concern to an operating individual sewage treatment system for the red clay soils.

(f) Proposed Change – 7080.0110, Subp. 4. D. (5) (b) (b) in lower topsoils topsoil layers which are deeper than 12 inches from the surface, and are immediately followed in depth by a seasonally saturated subsoils horizon, redoximorphic features include: i. soil colors with a chroma of two or less; or ii. redoximorphic accumulations or depletions; Justification - The criteria in the current rule have redoximorphic criteria for “lower topsoils” and “upper topsoil.” The proposed language change is to highlight that this criteria is for topsoil horizons deeper than 12 inches. The 12 inches is chosen due to the minimum suitable soil requirement for mound systems (7080.0170 subp. 5). Topsoil is defined in part 7080.0020 so the user is aware of whether the layer to be interpreted is a topsoil or subsoil horizon. Another change is to grammatically change these criteria to only apply if the horizon is immediately preceded by any horizon that is saturated. This change condenses the listing of all the types of horizons (subsoil, subsurface, parent material) that could be found below the lower topsoil horizon.

(g) Proposed Change – 7080.0110, Subp. 4. D. (5) (c) (c) in the upper topsoils 12 inches of the topsoil layer, immediately followed by a seasonally saturated lower topsoil horizon, redoximorphic features include the depth of seasonal saturation may be determined by the indicators in subunits i to v:


Justification - See the justification for 7080.0110, Subp. 4. D. (5) (b)

(h) Proposed Change – 7080.0110, Subp. 4. D. (5) (d) i to iv i. soil colors with a chroma of zero; ii. accumulation of high levels of organic material organic soil textures or mineral soil textures with an organic modifier; iii. dominance of hydrophilic vegetation; or iv. the soil treatment area at or near the elevation of the ordinary high water level of a surface water or the soil treatment area in a depressional landscape position; and or Justification - This change is for clarity and to be consistent with terms used in soil science.

(i) Proposed Change – 7080.0110, Subp. 4. D. (5) (c) v v. the soil expressing indicators of seasonal saturation as determined in the Field Indicators of Hydric Soils in the United States which is incorporated by reference. The book is issued by the United States Department of Agriculture Natural Resource Conservation Service and is available through the National Soil Survey Center USDA/NRCS, 100 Centennial Mall North, Room 152 Lincoln, NE 68508-3866. It can be found at the Minnesota State Law Library, Judicial Center, 25 Rev. Dr. Martin Luther King Jr. Blvd., St. Paul, Minnesota 55155, and is subject to frequent change. Justification - It is proposed to notify those familiar with the more detailed aspects of soil saturation determination of the above reference for their use. This reference contains criteria used by wetland delineators to determine hydric soil conditions and was developed by the Natural Resource Conservation Service (Exhibit 38). It is recommended that its use be restricted to professional soil scientists.

(j) Proposed Change – 7080.0110, Subp. 4. D. (6)

(6) Depth to the seasonally saturated soil for all existing systems is determined by redoximorphic features in subitem (5), except for unit (b), subunit i; and unit (c) subunits i, iii and iv as measured outside the area of system influence in an area of similar soil.


Justification - The changes are due to format changes in the proposed rule.

(k) Proposed Change – 7080.0110, Subp. 4. D. (7) (7) Depth of standing water in the hole soil observation excavation, measured from the soil surface, if observed. Justification - The use of the term “hole” insinuates that a soil boring must be conducted to determine standing water levels. The change is to highlight that there is more than one method to examine the soil (such as a soil pit) and the water level in these other excavations is a valid method to determine the standing water level at the site on the day of the investigation.

3. Part 7080.0715 LICENSE CONDITIONS.

(a) Proposed Change – 7080.0715, Subp. 3. A. Subp. 3. Seasonally saturated soil disagreements. A. If a documented discrepancy arises on the depth of the seasonally saturated soil between licensed businesses for ISTS design or compliance purposes, all disputing parties shall follow the procedure outlined in this item. Justification - Minn. Laws ch. 249 – 2004 requires that a seasonally saturated soil dispute resolution procedure be included in state rules. It is proposed to divide the dispute resolution provisions into two parts. The first part (item A) is a dispute resolution process if a dispute arises between licensed businesses. The second part (item B) is a dispute resolution process between a licensed business and a local permitting authority.

(b) Proposed Change – 7080.0715, Subp. 3. A. (1) (1) All local dispute resolution procedures must be followed. Justification - It is reasonable to have any dispute resolved by any local dispute resolution requirements that may be promulgated versus having a mandatory statewide resolution process, which may be in conflict with local requirements. The MPCA believes it is better to have local units of government settle any disputes as they know the local soil conditions, as well as the permit and inspection requirements. The local permitting authority is also probably aware of the common situation, problems, and the best solution to be followed.


(c) Proposed Change – 7080.0715, Subp. 3. A. (2)

(2) If no local dispute resolution procedures exist, the disputing parties must meet at the disputed site in an attempt to resolve differences. The MPCA is called many times when a dispute arises. A common fact in almost all cases is that the disputing parties have never met, or collectively reviewed, or discussed the disputed situation. Therefore, before escalating the resolution process to include the time and resources of others, it is reasonable to require that the disputing parties meet at and collectively review the disputed site to initially attempt to resolve the situation between themselves. The MPCA will provide some guidance on dispute resolution methods. A preliminary protocol that could be followed is provided below to give some idea of the scope of the work during this meeting. The disputing parties should discuss and review at least the following factors. At a minimum, the disputing parties should consider the following factors: • The depth of the seasonally saturated soil as determined by the local Soil Survey

Report, if available. • Any soil features affecting soil color or soil color patterns as described in the soil

series profile description in the local Soil Survey Report, if available. • The landscape position. • The dominate vegetation. • Internal soil properties affecting hydraulic conductivity. • Evidence of soil disturbance. The MPCA believes that a thorough assessment of the site, with use of a checklist, may reveal the cause of the discrepancy.

(d) Proposed Change – 7080.0715, Subp. 3. A. (3) (3) If the provision in subitem (2) does not resolve the differences, then one or more of the methods in units (a) to (c) must be employed. Justification - It is reasonable and necessary to employ the services of a third party if the dispute has not been resolved by the two parties still in disagreement once they have discussed it thoroughly together.


(e) Proposed Change – 7080.0715, Subp. 3. A. (3)(a) (a) Obtain an opinion from a qualified employee of the local permitting authority with jurisdiction, if the local permitting authority is willing to be involved. Justification - Even if the local permitting authority does not have a dispute resolution procedure, they may still wish to be involved in resolving the dispute. This would particularly be true for a design for a new system, which the permitting authority will ultimately need to approve. However clarifying language is added stating that this rule does not require the local permitting authority’s involvement at this point in the resolution process. This is added to try to minimize the time and resources of the local permitting authority until absolutely necessary.

(f) Proposed Change – 7080.0715, Subp. 3. A. (3)(b) (b) Obtain an opinion from an ISTS Technical Evaluation Committee, if a committee has been developed for this purpose, and is available and willing to render an opinion. The committee shall be created in cooperation with the commissioner. Justification - The MPCA has been requested by the industry to develop a panel of ISTS experts to resolve disputes. The MPCA is in the process of developing this panel in conjunction with the U of M. However, at this time, the scope and charge of the panel has not been completed. The scope and charge could range from technical assistance, to a training function, to a formal enforcement investigation. Also, it has not been decided if soil disputes will be a part of the function of the panel. In the event that soil disputes will be part of the function, the panel can be called upon to resolve the dispute.

(g) Proposed Change – 7080.0715, Subp. 3. A. (3)(c) (c) Obtain an opinion from a Minnesota registered professional soil scientist, who is both a registered professional ISTS designer or inspector, and independent of, and agreed upon by, both parties.


Justification - It is proposed that another method to resolve any dispute is with the expertise of a professional soil scientist. It is proposed that this soil scientist also have ISTS knowledge and experience to better enable that individual to understand both the soil complexities and the issues surrounding inspection and design. It is necessary to have this mediator agreed to by both parties, as disagreement on the person selected may negatively influence acceptance of the selected individual’s determination. This method to settle the dispute has been questioned by some as they claim that there are too few professional soil scientists to resolve the disputes. The MPCA disagrees as it is aware of 11 persons who are currently qualified to resolve such disputes (see Exhibit 29). It is unknown how many disputes will be settled before reaching the stage of employing a professional soil scientist. Please see section X for an estimate of the number of systems thought to employ a professional soil scientist.

(h) Proposed Change – 7080.0715, Subp. 3. A. (3) (d)

(d) If options under unit (a) or (b) are not viable, then an opinion must be rendered under the provisions of unit (c).

Justification -

It is necessary and reasonable to set one of the three options as being the default option in the event that both option (a) or option (b) are not available to be used. This option was chosen as the default option because it is the only option that is currently always available. The problem with this option is who will pay for the services of the professional soil scientist. It is presumed that the disputing parties will determine how the cost will be paid, since they are bound by this rule to resolve the conflict. This additional cost may be a catalyst for the parties to resolve the dispute without the services of a third party, which is the option in subpart 3 item A subitem (2).

(i) Proposed Change – 7080.0715, Subp. 3. A. (4) (4) If opinions rendered in subitem (2) or (3) do not resolve the dispute, all initial and follow-up documents and information generated shall be submitted to the local permitting authority. The local permitting authority shall take into advisement all information and opinions rendered and make a final judgment. Local permitting authorities shall render findings of fact, conclusions of law, and findings setting forth the reasons for any final decisions they render.


Justification - It is proposed that if the dispute cannot be resolved by the methods in subitems (2) or (3), then a regulatory mediator likely needs to be involved. For disputes on a soil determination for a design for a new system, it is only proper that the local permitting authority be involved as it has authority to issue or deny an ISTS construction permit. Soil disputes also arise from compliance inspection at property transfer for existing systems that may be required by the lending institution. It is proposed to require the local permitting authority to also be involved in resolving these disputes, if the above mentioned processes are first employed and fail. The MPCA believes that a disputed system had once been issued a certificate of compliance by the local permitting authority and that authority should have interest if the initial certificate of compliance was issued in error. Please see section X for estimates of additional workload to the local permitting authorities.

(j) Proposed Change – 7080.0715, Subp. 3. B. B. If a documented discrepancy arises on the depth of the seasonally saturated soil between a licensed business and a local permitting authority for ISTS design or compliance purposes, all disputing parties shall follow the procedure outlined in this item. Justification - It is a fairly common occurrence that disagreements arise between a local permitting authority and a licensed business. Therefore, provisions are needed to resolve these disputes.

(k) Proposed Change – 7080.0715, Subp. 3. B. (1) (1) The local permitting authority and the licensed business must meet at the disputed site in an attempt to resolve differences. Justification - Please see the justification for 7080.0715, Subp. 3. A. (2)

(l) Proposed Change – 7080.0715, Subp. 3. B. (2) (2) If the provision in subitem (1) does not resolve the differences, then one or more of the methods in item A subitem (3) units (b) or (c) should be employed.


Justification - It is the MPCA’s recommendation that a qualified third party provide expertise to provide an opinion in an attempt to resolve the dispute. The proposed rule is written not to require a third party, as Minn. Stat. § 115.55 indicates that the local permitting authority is responsible for proper regulation of individual sewage treatment systems, and it is believed that the local permitting authority would be the regulatory body to require a third party opinion if the local permitting authority was one of the disputing parties.

(m) Proposed Change – 7080.0715, Subp. 3. B. (3) (3) If opinions rendered in subitem (2) are not sought or do not resolve the dispute, the local permitting authority shall take into advisement all information and opinions rendered and make a final judgment. Local permitting authorities shall render findings of fact, conclusions of law, and findings setting forth the reasons for any final decisions they render. Justification - As indicated in the justification in subpart 3 B (2), Minn. Stat. § 115.55 indicates that the local permitting authority is responsible for the regulation of individual sewage treatment systems. Therefore, when disputes arise, the local permitting authority is the regulatory body authorized to make such decisions. This provision however does require the local permitting authority to take into advisement all information and opinions rendered before making a final judgment. This is only prudent, as the local permitting authority could be wrong in its initial determination, and reviewing all information is prudent before a final determination is made. If a disputing party desires further review of a final decision, that would be accomplished through a locally provided process and possibly further review by a court of appropriate jurisdiction.

(n) Proposed Change – 7080.0715, Subp. 3. C. C. Upon resolution of a dispute, amendments to initial disputed documents containing the resolution provisions shall be made and submitted to the local permitting authority and all other parties involved. Justification - It is reasonable and necessary to require that any change in the seasonally saturated soil determination by one or more of the parties result in a change in the documentation. This is necessary as the MPCA is aware of many instances where one of the parties does not change the documentation, leaving confusion if the record is ever utilized in a future compliance issue.


4. Part 7080.0900 ENFORCEMENT ACTION.

(a) Proposed Change – 7080.0900, Subp. 1. F. (new) Subpart 1. Business licenses. The commissioner may deny, suspend, restrict, or revoke a business license issued under part 7080.0705 for any of the following reasons: A. failure to meet the requirements for a license; B. failure to comply with applicable requirements; C. submission of false or misleading information or credentials in order to obtain or renew a license; D. failure to provide adequate supervision to nonregistered ISTS employees; or E. incompetence, negligence, or inappropriate conduct in the performance of the duties of an individual sewage treatment system professional; or F. failure to comply with soil dispute resolution requirements in part 7080.0715 subpart 3. Justification - It is reasonable to make non-compliance with the dispute resolution requirements an enforceable violation of the rules. State law requires that not only rules be written in this area, but that they will be followed and enforced.

XIV. LIST OF AUTHORS, WITNESSES AND EXHIBITS A. Author Mark S. Wespetal, P.S.S., Municipal Division, Minnesota Pollution Control Agency.

B. Witnesses The MPCA anticipates that the proposed amendments will be non-controversial, and that no public hearing will be necessary. If these rules go to a public hearing, the MPCA anticipates having the following witnesses testify in support of the need for and reasonableness of the rules:

1. Mr. Mark S. Wespetal, P.S.S, Municipal Division. Mr. Wespetal is the principal author of the SONAR and will testify on the general need for and reasonableness of the proposed rules.

C. Exhibits

1. Meeting minutes from U of M/MPCA staff meeting, July 11, 2005 2. Field Book for Describing and Sampling Soils – Version 2.0, September 2002 3. Internet Glossary of Soil Science Terms – Soil Science Society of America, July 7, 2005 4. Web page posting of rule, 7/6/05 5. Minn. Law ch. 249, 2004 6. A Method to Predict Soil Saturation Frequency and Duration from Soil Color – Soil

Science Society of America Journal 67: 961-969 (2003)


7. Mailing of draft rule to ISTS Advisory Committee and Minnesota Association of Professional Soil Scientist, June 29, 2005

8. Calibrating Hydric Soil Field Indicators for Long-Term Wetland Hydrology - Soil Science Society of America Journal 68: 1461-1469 (2004)

9. SONAR for 1978 ISTS rules (WPC-40), 1978 10. SONAR for 1996 ISTS rules (Chapter 7080), 1996 11. SONAR for 1999 ISTS rules (Chapter 7080), 1999 12. Request for Comments for revisions to Minn.. R. ch. 7080, January 5, 2004 (Broad Rulemaking) 13. Comments to draft rule – Sara Christopherson, U of M, June 28, 2005 14. Notes from MPCA/U of M meeting, June 29, 2005 15. Comments to draft rule – Randy Ellingboe, MDH, June 30, 2005 16. Comments to draft rule – Norm Kuhlman, Nicollet County, June 30, 2005 17. Comments to draft rule –Jack Frost, Met Council, June 29, 2005 18. Comments to draft rule – Kim Steffen, NRCS, June 30, 2005 19. Comments to draft rule – Barb McCarthy, MPCA, June 29, 2005 20. Comments from Ron Hedlund – ISTS professional, July 25, 2005 21. Notes from meeting with the Honorable Senator Michael Jungbauer, July 6, 2005 22. Comments to draft rule – Jade Schulz MPCA, June 28, 2005 23. Notes from meeting with MPCA staff 24. Comments to draft rule – Terry Bovee, MDH 25. University of Minnesota Training Manual (“B” Section – Soils), 2005 26. Anoka Sand Plain Soils Training, Procedures and Final Report, University of

Minnesota, 2005 27. Announcement and limited slide presentations from Redox Conference – University

of Minnesota, March 31, 2005 28. Comm. 85 – Soil and Site Evaluation rules – Wisconsin Department of Commerce,

November 2004 29. List of Soil Scientist who are ISTS Designers – University of Minnesota, 2005 30. Minutes of meeting of MAPSS ISTS subcommittee (broad rulemaking), October 1, 2003 31. Minutes of meeting of MAPSS ISTS subcommittee (broad rulemaking), February 3, 2005 32. Comments on proposed S.F. 1900 (Senator Jungbauer’s redoximorphic bill), Robert

Whitmyer, MATRIX Soil & Systems, February 23, 2004 33. E-mail from Terry Bovee, MDH on field training for redoximorphic features

interpretations. 34. Comments to draft rule (broad rulemaking) – Kevin Kloepner, Eco Systems

Engineering, June 16, 2004 35. Comments to draft rule (broad rulemaking) – Kim Steffen, NRCS, January 14, 2005 36. Request for Comments – State Register, July 18, 2005 37. Interested and affected parties mailing list 38. Field Indicators of Hydric Soils in the United Sates, version 5.01 – USDA Natural

Resource Service, 2003 39. News article on proposed changes to Minn. R ch. 7080 to appear in the “Little

Digger” newsletter issued by the Minnesota Onsite Sewage Treatment Contractors Association

40. Comments from Mary West, PSS (Carver County ISTS administrator and member of Minnesota Association of Professional Soil Scientists.

41. Permits issued per county from 2003 local unit of government annual reports. 42. System cost from 2002 – 2003 ISTS contractor survey.


XV. CONCLUSION Based on the foregoing, the proposed rules are both needed and reasonable. Dated: ____________________________ _______________________________________ Sheryl A. Corrigan Commissioner

statement of need and reasonableness (sonar) · the subject of this statement of need and...

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