How will the MPCA handle Enbridge Line 3’s water quality certificate? Minntac’s example is alarming

Part IV and last in 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.

Tribes, environmental groups, and concerned citizens won a victory recently, when the Minnesota Pollution Control Agency (MPCA) agreed to allow challenges to its proposed approval of the Enbridge Line 3 tar sands oil pipeline.

To proceed with Line 3, Enbridge needs the MPCA to issue the project a water quality certificate. The agency had tentatively given the OK.

Public pressure got the MPCA to reconsider, and it ordered a contested case hearing. Administrative Law Judge James LaFave will handle the proceedings, expected later this summer. The hearings will allow intervenors — White Earth Nation, Red Lake Nation, Honor the Earth, Sierra Club and Friends of the Headwaters — to challenge the facts the MPCA used to reach its decision.

This is a significant win. The MPCA doesn’t seem inclined to use its regulatory authority to protect water quality. One troubling example is the MPCA’s failure in 2014 to use the water quality certificate process to force U.S. Steel to address ongoing pollution problems at its Minntac taconite mine in northern Minnesota.

Minntac Case Study

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

The MPCA declined to comment on Minntac permits for this series because of ongoing litigation.

Taconite mining is a water-intensive process. (See Part 1.) For decades, Minntac has been releasing polluted water into nearby lakes and streams and into the groundwater. It has high levels of sulfate pollution, well beyond state and federal standards. Sulfate is toxic to wild rice. (See Part II.)

Around 2012, U.S. Steel applied to expand Minntac by 483 acres. The expansion would allow U.S. Steel to continue operating Minntac until 2031.

To proceed, U.S. Steel needed an MPCA water quality certificate, technically called a Section 401 Certificate, which verifies to the federal government that the project meets water quality standards. This review could have given the MPCA needed leverage to force U.S. Steel to reduce the sulfate pollution leaving Minntac’s basin.

The MPCA either was unwilling or unable to do so. It’s an example of environmental racism. The MPCA’s decision favored U.S. Steel, even though the company had a long history of flouting water quality rules. Its decision did the greatest harm to Ojibwe people for whom wild rice is a sacred food. The Fond du Lac and Grand Portage nations have off-reservation treaty rights to hunt, fish and gather in northeastern Minnesota, including the area around Minntac.

WaterLegacy, an environmental group, argued multiple reasons the  MPCA should deny the mine expansion. In a January, 2014 letter it said Minntac “has violated Minnesota water quality standards for decades and is currently under investigation by the United States Environmental Protection Agency (EPA) for discharge of pollutants in violation of the Clean Water Act.”

The law required the MPCA to deny the certificate if the agency couldn’t assure the project would comply with water quality standards or if there were unresolved problems with meeting regulations, WaterLegacy said.

The MPCA approved Minntac’s water quality certificate anyway. Since U.S. Steel’s plan wouldn’t increase the volume or type of water pollution leaving the tailings basin, the agency said didn’t need to consider the project’s water quality impacts or other permitting issues.

The MPCA certified the mine expansion “because there is reasonable assurance that the activity will be conducted in a manner that will not violate applicable water quality standards,” provided U.S. Steel complies with certificate’s conditions, the agency said. (Emphasis added.)

The MPCA’s conditions required U.S. Steel to do stream and wetland mitigation. They didn’t address sulfate pollution. The MPCA’s letter of approval didn’t even use the word “sulfate.”

Wild rice is sacred to the Ojibwe people. Sulfate pollution harms the plants. (Photo: Leslie Seaton)quality below Minntac’s basin, why not at least try? Why take such a weak stand?

As a side note, the Minnesota Department of Natural Resources could have required an environmental impact statement (EIS) for the mine expansion.

WaterLegacy petitioned the DNR for an EIS in 2012, writing:

For decades, Minntac’s phased expansion and destruction, pollution and appropriation of water resources has evaded detailed environmental review. The permit process has neither protected Lake Superior Basin and Rainy River Basin water resources, allowed a comprehensive examination of the effects of Minntac’s facilities, nor required selection of alternatives to minimize and mitigate those effects.

The DNR decided against an EIS in 2013.

Minntac’s water quality violations continue. In 2018, the MPCA wrote:

U.S. Steel has committed several times to lower concentrations of pollutants in basin water and proposed various methods to do so.

U.S. Steel has failed to implement any of the methods it has proposed or committed to undertake. Under the current circumstances, the MPCA concludes that pollutant concentrations in the Tailings Basin will continue to increase.

Enbridge Line 3

Current Line 3 route (orange) and proposed route (green).

Enbridge also needs an MPCA water quality permit. The pipeline would trench through 355 miles of northern Minnesota beauty, crossing more than 200 streams and other waterbodies and 79 miles of wetlands.

Just on its face, how could such a massive project not do significant damage to state waters and wetlands?

Enbridge has admitted in government filings that it can’t build Line 3 through such a water-rich environment and meet all state environmental regulations.

In a 2019 DNR application, Enbridge wrote:

[Line 3] complies with environmental standards applicable to the public water crossings except where it is not feasible and prudent or in the best interests of the environment.

In other words, the project complies with the rules except when it doesn’t.

DNR wild rice map

Line 3’s contested case hearing will review such things as whether or not the MPCA adequately assessed wetland impacts from Line 3’s construction. However, the hearing will not be as robust as Line 3 opponents had hoped. For instance, several people and organizations asked the MPCA to consider oil spills as part of its assessment, a request the MPCA denied.

The MPCA’s letter approving the certificate said the federal government oversees pipeline operations and spills, not the state. That argument misses the point.

Just because the federal government handles pipeline spills shouldn’t preclude the MPCA from considering crude oil spills as a water quality threat worthy of consideration before approving Line 3.

The MPCA indicated an interest in oil spills. In its order, it writes:

On September 27, 2019, the MPCA denied Enbridge’s initial request for a 401 Certification. The MPCA found that Enbridge needed to submit additional information regarding oil spill modeling, aquatic resource monitoring, and compensatory wetland mitigation before the agency could determine whether the Project complied with water quality standards.

Why ask for more oil spill monitoring information if it wasn’t going to use it?

In some cases, the MPCA admited it has authority to consider water quality impacts from pipeline operations. It proceeded to make this odd argument.

… the agency distinguishes between intentional (or approved) and unintentional (or unapproved) discharges. Here, Enbridge does not seek approval for nor intend to discharge any grade of crude oil… and the 401 Certification includes a condition that prohibits any such discharge [spill] from Line 3.

Enbridge’s 2010 Kalamazoo spill has cost more than $1 billion to clean up. (Photo: U.S. Environmental Protection Agency)

Let that sink in.

The MPCA says it would consider impacts of Line 3 crude oil spills as part of its review, but only if Enbridge applied to spill crude oil. If Line 3 should have an accidental spill, that apparently doesn’t merit the MPCA’s attention.

Anyway, the agency says, the water quality certificate prohibits oil spills.

To state the obvious, a certificate prohibiting oil spills does not stop oil spills. That language seems irrelevant to the real-life problem of spills.

The MPCA says whether or not it’s obligated to consider oil spills in its Line 3 review is a question of policy and law, and those are outside the role of contested case hearings.

In its order, the MPCA cites no law or policy that prohibits it from considering oil spills as part of its Section 401 review. It seems to be the MPCA’s own interpretation of policy and law that is tying its own hands.

The MPCA seems to be voluntarily limiting its own authority.

Just like with Minntac, the MPCA’s approach to Line 3 favors industry.

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.
• Part III: State Legislature has passed laws to undermine the MPCA’s ability to enforce water and wild rice protections