State Legislature has passed laws to undermine the MPCA’s ability to enforce water and wild rice protections

Part III of a series exploring 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.

Minntac viewed from Mountain Iron

Making laws can be messy. We want to believe that the end result is democratic and fair.

In reality, we know that some groups have stronger political connections and more money, and that can influence outcomes. We need to know that we have strong political institutions that can provide balance, making sure sound science is followed, that Native Nations and other communities with less power get heard, and the public interest is best served.

The state of Minnesota in general – and the Minnesota Pollution Control Agency (MPCA) in particular – have failed to strike that balance when it comes to regulating U.S. Steel’s Minntac taconite mine, and other mining operations, and the water pollution they generate.

The MPCA has much to answer for regarding its ineffectiveness in regulating Minntac’s mine wastewater, but it’s also important to acknowledge that the legislature and pro-mining lobbying interests have undermined the agency’s ability to take a tough stand in recent years.

Sandy and Little Sandy lake, downstream from Minntac’s basin, once had 200 acres of wild rice. The rice is gone now.

The MPCA has declined to comment on this story because of pending litigation.

Wild rice is sensitive to water pollution, particularly sulfates. In order to protect it, Minnesota created the Wild Rice Rule in 1973 to limit sulfate pollution in wild rice waters. It’s part of the state’s Federal Clean Water Act requirements, which the MPCA is supposed to enforce.

Problem is, the MPCA has rarely enforced the Wild Rice Rule. One example of the agency’s inaction is the Minntac tacontie mine near Mountain Iron. Historically, the sulfate-laden waters from the tailings basin have gotten into surfaces waters of the Sand and Dark river watersheds, both through surface water runoff and groundwater contamination.

Currently, roughly 2.5 million gallons a day of sulfate-contaminated water enters the shallow aquifer under Minntac’s unlined tailings basin. The basin’s sulfate levels have been, and continue to be, well above the Wild Rice Rule’s 10 milligrams/liter (mg/L) limit.

Sandy and Little Sandy lakes, just downstream from Minntac’s tailings basin, once had at least 200 acres of wild rice. The wild rice is long gone. The Minnesota Department of Natural Resources (DNR) says that while there is no direct evidence that sulfate alone caused the wild rice die off, “indirect evidence for such is compelling.”

Twelve years ago, the DNR’s 2008 Wild Rice report noted that Tribal governments were expressing strong concern over mining’s cumulative impact on wild rice, both current mines and planned mines in northeastern Minnesota. “State agencies are working with mining companies to decrease sulfate concentrations in discharge waters,” the report said said.

This promised collaboration between the state and industry turned out to be a dud.

Chamber runs interference for mining interests

One of the MPCA’s few tentative efforts to enforce the Wild Rice Rule came in 2010-2011. In 2010, the agency asked United Taconite LLC, Mesabi Mining LLC, and PolyMet to conduct wild rice surveys in areas affected by their wastewater discharge, “to determine whether they are subject to the Wild Rice Rule’s sulfate standard for future permitting actions.”

In 2011, the MPCA proposed modifying the water discharge permit for Keetac, U.S. Steel’s Keewatin taconite mining operation, imposing the Wild Rice Rule and prescribing a compliance timetable.

That set off mining industry alarm bells. The Minnesota Chamber of Commerce sued on behalf of the mining companies, arguing the Wild Rice Rule was unconstitutionally vague.

In a cruel twist, the Chamber also argued that the MPCA shouldn’t be able to require its members to conduct wild rice surveys, “unless the waters are used for commercial cultivation of wild rice.”

Such an argument sends an ugly message that wild rice grown simply for commercial profit is more worthy of the state’s protection than naturally growing wild rice central to Anishinaabe and Dakota peoples’ identities and spirituality.

In an unpublished 2012 opinion, the Minnesota Court of Appeals declined to act on the Chamber’s request.

As challenges to the Wild Rice Rule moved through the courts, the Chamber and mining interests lobbied the legislature to weaken wild rice sulfate standards. The eventual compromise that year required the MPCA to develop a research plan to evaluate “the impacts of sulfates and other substances on the growth of wild rice.”

In August of 2013, the MPCA developed an initial list of wild rice waters impaired by sulfate pollution under the existing Wild Rice Rule. Mining interests lobbied to delay its publication, an apparent effort to avoid embarrassing publicity about the problem.

In 2014, the MPCA briefed the legislature on its initial research on sulfate’s impact on wild rice. Its preliminary conclusions said the current Wild Rice Rule’s standard of 10 mg/L of sulfate “is needed and reasonable to protect wild rice production” and “should continue to apply to both lakes and streams.”

That did nothing to stop efforts to change the rule, which accelerated the following year.

Mining interests gain upper hand, weaken MPCA authority

Former Gov. Mark Dayton

During the 2015 legislative session, Gov. Mark Dayton sided with mining interests. He told MPR the Wild Rice Rule was “out of date” and “obsolete”, and “pushing it could be catastrophic for northeastern Minnesota.” In an interview, Dayton said U.S. Steel had made it clear they wouldn’t agree to a Minntac water discharge permit that applied the current Wild Rice Rule.

The fact that a state governor was ready to brush aside water quality rules because a regulated company like U.S. Steel found them unacceptable says a lot about the mining industry’s political clout.

Around the same time, MPCA officials were warning lawmakers “that efforts to undermine the water pollution standards could prompt the federal Environmental Protection Agency to take control of state water regulations,” MPR reported.

Regardless of that warning, the 2015 legislature passed several measures to weaken the MPCA’s authority and public participation in water quality oversight. It:

• Abolished the MPCA’s Citizens’ Board, a place where mining opponents could challenge permits and MPCA findings.
• Barred the MPCA from publishing a list of impaired wild rice waters based on the 1973 Wild Rice Rule until the new Wild Rice Rule was in place.
• Allocated $1.5 million to the MPCA from the Clean Water Fund to do a Wild Rice Sulfate Study to determine sulfate’s affects on wild rice growth.

This last item is particularly galling. Clean Water Funds are supposed to support projects that “protect, enhance, and restore water quality in lakes, rivers, and streams and to protect groundwater from degradation.” It seems clear this $1.5 million grant was an abuse of the program’s intent, requested not to protect water quality but to weaken it for mining interests.

Most significant, the 2015 legislature passed a law preventing the MPCA from requiring mining companies to spend money to reduce their sulfate pollution in wild rice waters. The law went as far to say that the MPCA couldn’t force these companies to clean up their act even if they were violating the Federal Clean Water Act.

This pro-pollution law would stay in effect until the MPCA adopted a new Wild Rice Rule, the legislation said. The law gave the MPCA a Jan. 15, 2018 deadline for the new rule, later extended to Jan. 15, 2019.

A new rule has yet to be approved.

New rule flops

Members of the Leech Lake Band of the Ojibwe Tribe harvest rice on Mud Lake. (Photo: U.S. Army Corps of Engineers.)

The MPCA proposed a new Wild Rice Rule in 2017, identifying approximately 1,300 lakes, rivers, and streams where it would apply. The rule created a complex equation that set individual sulfate limits for each wild rice water. (As the MPCA explained it, sulfate interacts with the iron and carbon in the water to create sulfide, which is the chemical that damages wild rice. So the amount of carbon and iron in any given wild rice water would determine how much sulfate could be released safely.)

The MPCA’s proposal went through the state’s rule making process. Administrative Law Judge Laurasue Schlatter held several public hearings on the rule, received approximately 1,500 written comments, and issued a report in early 2018.

Judge Schlatter rejected the agency’s new wild rice standard in strong terms. Her ruling said the MPCA failed to provide a reasonable explanation for repealing the old Wild Rice Rule. Further, the equation-based rule was unconstitutionally vague and violated the Clean Water Act.

The MPCA defended its new rule, saying it would protect wild rice better than the old standard, and “many Native Americans, especially members of the Ojibwe and Dakota tribes, will benefit from the proposed rule.”

The judge saw it differently, saying the agency failed “to identify Minnesota Indian tribes or individual Native Americans as classes of persons who would bear a burden under the proposed rules.” The ruling continued:

… the volume and nature of the comments from the Native American community demonstrated that the Agency has not succeeded in building an atmosphere of trust regarding this proposed rule, or in making the Minnesota Native American community feel that it has been heard. …

[Native American communities] believe that the long-term survival of wild rice is in peril and do not believe that the Agency understands the importance of wild rice in Native American culture and life.

The MPCA withdrew its proposed rule more than two years ago, April 26, 2018.

Since the legislative leaders couldn’t get the changes they wanted through rules, the Republican-controlled House and Senate passed a bill in 2018 to weaken sulfate pollution limits in wild rice waters. Gov. Dayton, a Democrat, apparently reversing his 2015 position, vetoed the bill, “calling it an extreme overreach by state lawmakers and a violation of the federal Clean Water Act,” the Star Tribune reported.

Politics is the art of give and take, but there are limits. As we have seen in the national response to the coronavirus, politics can drive decisions that contradict science and do serious damage to public health.

The fact that the mining industry has been allowed to flout the Wild Rice Rule for so long sets a bad precedent. It weakens the MPCA’s perceived authority because industry sees the agency chronically caving in.

Political leaders and lobbyists don’t get to change rules just because they are inconvenient or add production costs. We need state agencies that can stand up to political pressure when it crosses a line, especially when it means protecting the interests of Native Nations and others those who don’t have political clout.

For the sake of our democracy, we need to know that rules matter and apply to everyone, especially those with power and clout.

See also:

• Part 1: Minnesota’s lead environmental protection agency has failed to protect our water and wild rice: A Minntac Case Study
• Part II: The MPCA’s stunning ineffectiveness in protecting state waters from mining interests: A timeline of inaction.