A recent U.S. Supreme Court decision could require the MPCA to enforce tougher water quality standards on pollution discharged from U.S. Steel’s Minntac mine
Part I in a series which explores how the Minnesota Pollution Control Agency (MPCA) has failed for decades to enforce water quality standards against U.S. Steel and its Minntac mine in northern Minnesota.
Wild rice is a sacred food to the Ojibwe and Dakota peoples, holding spiritual and cultural value. For some Anishinaabe in northern Minnesota, it’s also source of income. It’s Minnesota’s state grain and important to the state’s identity.
It’s also very sensitive to water pollution, notably sulfates.
Minnesotans care about clean water. In 1967, the Minnesota Legislature created the Minnesota Pollution Control Agency (MPCA), giving it a “unique challenge and a demanding responsibility: to protect the air, waters and land of our great state.”
In 1973, Minnesota created a rule limiting sulfate pollution in wild rice waters, known as the Wild Rice Rule. The U.S. Environmental Protection Agency (EPA) approved the rule under the federal Clean Water Act.
The problem is, the MPCA has rarely enforced the Wild Rice Rule. The agency first applied it in 1975, regarding wastewater discharge from Minnesota Power’s Clay Boswell coal-fired power plant, court records say. The agency didn’t apply the rule again until 2010, 35 years later.
A prime example of the MPCA’s failure to enforce the Wild Rice Rule is the wastewater pollution discharge from U.S. Steel’s Minntac taconite mine near Mountain Iron.
The MPCA regulates wastewater pollution from mining operations by issuing wastewater discharge permits that spell out levels of specific pollutants. (These permits are technically called “National Pollution Discharge Elimination System/State Disposal System” permits.)
For decades, Minntac released wastewater into nearby streams and into the groundwater at levels exceeding the Wild Rice Rule’s sulfate standard. U.S. Steel has consistently sought variances from the Wild Rice Rule. While the MPCA hasn’t granted such variances, neither has it successfully enforced the rule.
The MPCA declined to comment for this story because its currently involved in litigation over U.S. Steel’s wastewater permit.
Wild rice near mine is gone, its significance undervalued
A review of MPCA and court records and media accounts provide a window into the problem.
Since Minntac opened in 1967, nearby wild rice stands have died, the apparent result of the mine’s sulfate pollution.
As recently as 1982, Sandy and Little Sandy lakes – waters just below Minntac’s tailings basin – had more than 200 acres of wild rice combined. The 2018 Minnesota Tribal Wild Rice Task Force reported that wild rice on those lakes is now “poor to nearly non-existent.”
It attributes those losses to Minntac’s tailings basin.
A Minnesota Department of Natural Resources study says that while there is no direct evidence that sulfate alone caused the wild rice decline in Sandy and Little Sandy lakes, “indirect evidence for such is compelling.”
Wild rice doesn’t get the protection is deserves because the state views it as just another commodity, the Minnesota Tribal Wild Rice Task Force said. The state also views protecting wild rice as a cost to industry.
Among the Task Force’s recommendations:
The state’s economic analysis only looks at one side of the equation, namely the economic costs to the regulated community [mines]. It does not assign value (or gives a value of zero) to clean water, healthy wild rice, reduced mercury in fish, and health and cultural benefits. These values are immeasurable and can be hard to quantify, but must be considered in regulatory decisions.
Going to court
The MPCA reissued Minntac’s wastewater discharge permit in 2018. The Fond du Lac Band of Lake Superior Chippewa and the environmental group WaterLegacy have challenged the permit in court, arguing its water quality standards are too lax.
The case is now before the Minnesota Supreme Court.
One key dispute is over how the MPCA interprets groundwater pollution laws. The state’s lead environmental protection agency is arguing for weaker pollution standards than Fond du Lac and WaterLegacy.
The MPCA says the Wild Rice Rule only applies to point source pollution into surface waters, not groundwater pollution. WaterLegacy argues that since Minntac’s groundwater pollution surfaces into nearby lakes, streams and wetlands, the stricter Clean Water Act standards should apply.
A recent U.S. Supreme Court ruling in County of Maui, Hawaii v. Hawaii Wildlife Fund should have a big impact on the Minnesota case, strengthening Fond du Lac and WaterLegacy’s argument.
We’ll return to the court case shortly, but first some background.
Where the pollution comes from, where it goes
Minntac excavates and processes taconite, a rock with low iron content. The process uses — and pollutes — a lot of water.
The taconite is crushed, then mixed with water and ground into a powder. The iron powder is separated with magnets and gets further processed into pellets.
Minntac uses more than 50 million gallons of water a day to process iron. The wastewater is pumped into the tailings basin. Some wastewater leaks into the environment or evaporates, needing to be replaced; the wastewater also gets recycled.
The wastewater includes “tailings,” the crushed rock left after the iron is extracted, and wild-rice-damaging sulfate, a mining process byproduct.
Minntac’s wastewater basin covers 13.6-square miles, the largest such tailings basin in Minnesota and the one with the highest sulfate concentration. It was built on the Laurentian Divide on the headwaters of the Dark and Sand rivers. The basin is enclosed to the south by high bedrock; a 9.1-mile dam encloses the rest.
Historically, wastewater has seeped out at low spots along the base of the dam, going directly into the Dark River and Sand River watersheds. After operating for more than 50 years, U.S. Steel has worked to capture and return this seepage to the dam. Work should be done by this summer.
However, wastewater also enters the groundwater through the bottom of Minntac’s unlined basin. The shallow aquifer below the basin is only 10 to 55 feet thick, mostly porous sand and gravel and peat sitting on top of bedrock. Approximately 2.5 million gallons a day (or more than 1,700 gallons a minute) of sulfate-contaminated water enters this aquifer through the bottom of the basin, what regulators call “deep seepage.”
MPCA applies lesser standard to Minntac’s groundwater pollution
Minntac has failed to meet either standard, and failed badly. For instance, in September, 2019 the sulfate concentration in Minntac’s basin water was 962 mg/L, the MPCA said.
The chart above shows sulfate concentrations at a monitoring station at the base of the dam where wastewater seeps into the Dark River. It shows that sulfate concentrations have been generally rising.
While Minntac has addressed the direct discharge of wastewater into surface waters through collection-and-return systems, the chart suggests that sulfate concentrations in groundwater pollution likely have trended higher, too.
County of Maui, Hawaii v. Hawaii Wildlife Fund
In recent years, the Minnesota Legislature has tied the MPCA’s hands in addressing sulfate pollution from mines. (More on this in Part III.)
In the case now before the Minnesota Supreme Court, Fond du Lac and WaterLegacy are suing to make the MPCA enforce stricter water quality standards to Minntac’s groundwater pollution.
The U.S. Supreme Court’s April 23 decision in County of Maui, Hawaii v. Hawaii Wildlife Fund ruled that the Clean Water Act can apply to groundwater pollution in some cases. The County of Maui’s wastewater treatment facility was pumping 4 million gallons a day of treated wastewater into below-ground wells without a Clean Water Act permit. The Hawaii Wildlife Fund sued, arguing the county needed such a permit because the wastewater was still ending up in surface waters, specifically the Pacific Ocean.
In a 6-3 decision, the U.S. Supreme Court sided with the Hawaii Wildlife Fund, writing that a Clean Water Act permit is needed when there is a “direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.”
Fond du Lac and Water Legacy will argue that Minntac’s groundwater pollution is a “functional equivalent” of a direct discharge into the Sand and Dark river watersheds because the groundwater pollution is ending up in nearby lakes, streams and wetlands. The Clean Water Act — and the Wild Rice Rule — should apply.
“The Maui case means that MPCA position is wrong,” WaterLegacy wrote.
Should the MPCA lose this case, it would give the agency a needed push to enforce water quality standards, protect wild rice, and live up to its demanding responsibility “to protect the air, waters and land of our great state.”