Court rulings on mining pollution highlight MPCA failings

Correction: An earlier version of this story incorrectly stated the MPCA’s position before the Minnesota Supreme Court on MinnTac’s groundwater pollution. The MPCA supported applying the higher drinking water standards. The story has been updated.

Minnesotans value our state’s clean waters. As the Land of 10,000 Lakes, it’s core to our identity.

When European settlers started arriving here, the waters were 100 percent pristine. Now 200 years later, most of our lakes and streams are considered impaired to some degree, according the Minnesota Pollution Control Agency (MPCA’s). Some 65 percent our 27,329 miles of streams are impaired by at least one factor, according to the MPCA’s 2020 report to Congress. Nearly 90 percent of our acreage of lakes are likewise impaired.

The MPCA is supposed to be the state’s leading environmental protection agency, the guardian of our precious clean water.

It is not. Turns out, that award goes to the Minnesota court system.

MPCA: A sleepy watchdog with no teeth

The MPCA’s mission statement is simple enough: “to protect and improve the environment and human health.”

Among its duties, the MPCA is supposed to regulate wastewater leaving U.S. Steel’s Minntac Mine. The agency issued U.S. Steel its first wastewater discharge permits in 1987. (Technically, there’s two parts: a National Pollutant Discharge Elimination System permit for surface water pollution and a State Disposal System permit for groundwater pollution.)

The agency was supposed to reissue a new permit every five years, starting in 1992. For nearly 30 years, the MPCA has extended the old and outdated permit rather than issue a new one with tougher requirements.

The mine has — and continues to — significantly exceed water pollution levels. If anything, the pollution levels have gotten worse.

Paula Maccabee, attorney for the environmental group WaterLegacy, said regulators like the MPCA “holds a lot of the cards” in enforcing pollution standards. If they want, they can “slow walk” the process and negotiate “seemingly forever” with companies about meeting the standards.

“It’s also possible to set a clear limit and then be prepared to defend it,” Maccabee said. “Then under the law, the burden would shift to the discharger to meet the limit.”

The MPCA seems to have taken the “slow walking” path. she said.

In 2018, the MPCA issued a new wastewater discharge to U.S. Steel for its Minntac mine. Maccabee called it “a tiny baby step in the right direction. But it was not a strong permit.”

The Fond du Lac Band of Lake Superior Chippewa and WaterLegacy have been relentless in trying to get the MPCA to do its job.

Kevin DuPuis, Fond du Lac Chairman

In the last two years, the Minnesota Court of Appeals and the Minnesota Supreme Court have issued key rulings on Minntac’s wastewater discharge permit. Fond du Lac and WaterLegacy are three for three on the issues important to them.

The courts took a stronger stand to protect Minnesota’s water quality than the MPCA. In December, 2019 the Court of Appeals found the MPCA “ignored” or “overlooked” evidence of ongoing surface water pollution problems.

This year, the Minnesota Supreme Court sided with Fond du Lac, WaterLegacy, and the MPCA saying the agency could apply stronger groundwater pollution standards to the mine.

Paula Maccabee, WaterLegacy attorney

Fond du Lac Chairman Kevin Dupuis called the decision “hard won,” and “just one step in our fight to protect our wild rice waters.”

“We will keep pushing the state and others to follow the law and respect our treaty rights for as long as it takes. Clean water is non-negotiable.”

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The MPCA’s weak and slow response to Minntac’s pollution problem is part of a long-standing pattern.

The MPCA was very slow to protect north Minneapolis from the air pollution spewing from the Northern Metal recycling plant. The agency would make strong statements about the need for Northern Metal to meet air quality standards, but then fail to take strong enforcement action in the face of repeated violations.

The MPCA was very slow to respond to the air pollution coming from Water Gremlin, a lead battery terminal manufacturer in White Bear Township. The Minnesota Legislative Auditor recently released a critical report, finding “significant weaknesses in both MPCA’s permitting and enforcement activities.”

Mission

Protect and improve the environment and human health.

Vision

MPCA is a national leader in delivering services that support healthy people and ecosystems, and a thriving economy.

MPCA Website

The majority of the members of the MPCA’s Environmental Justice Advisory Group (12 of 17 members) resigned last year in protest over the agency’s decision to approve water crossing permits for the Enbridge Line 3 tar sands pipeline. Line 3 threatens northern Minnesota’s clean waters, treaty rights, and the global climate. In their resignation letter, members said they “cannot continue to legitimize and provide cover for the MPCA’s war on black and brown people.”

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Wild rice is a sacred food for the Anishinaabe people. 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.”

Here’s how court decisions could address longstanding wrongs.

Win #1: U.S. Steel must address surface water pollution leaking out of its tailings basin

On Dec. 9 2019, Fond du Lac and WaterLegacy scored a win at the Minnesota Court of Appeals, forcing the MPCA and Minntac to deal with the surface water pollution leaking out of its tailings basin into nearby waters, such as Little Sandy and Sandy lakes.

Processing taconite ore for its iron is a water-intensive process. The polluted water contains high sulfate levels. The polluted water gets pumped into a giant tailings basin and reused.

The basin is bordered by a bedrock wall to the south, with a nine-mile dam encircling the rest. Polluted water has seeped out along the base of the basin into nearby surface waters, a long standing problem.

Aerial view of Minntac’s tailings basin.

The U.S. Clean Water Act imposes a 10 mg/L limit on sulfate. In Minnesota, this is called the Wild Rice rule. Sulfate pollution harms wild rice.

It took a lot of MPCA cajoling, but U.S. Steel set up two stations at the base of the dam to pump the polluted water seeping from the bottom back into the basin. (One pump was installed in 2010, the other last year.) U.S. Steel argued — and the MPCA agreed — that these pumping stations had dealt with all the surface water pollution leaking from the dam’s nine-mile perimeter.

Maccabee said the two pumping stations “were a cheap solution” allowing Minntac “plausible deniability.” It could argue it already had addressed the surface water problem.

The MPCA should have used its leverage to require U.S. Steel to actually treat the pollution, “not to put a tiny Band-Aid on top of a cancer,” Maccabee said.

Fond du Lac and WaterLegacy took the issue to court, arguing MPCA’s proposed discharge permit failed to address all the surface water pollution escaping the dam.

Pollution levels MPCA allowed to continue to seep out at the base of MinnTacs’ tailings basin dam — and for how long. Minntac has installed two pumping stations to try to capture the seepage.

Fond du Lac and WaterLegacy won in the Court of Appeals.

The court criticized the MPCA for not doing its homework. The MPCA hadn’t “engaged in any actual analysis” of whether Minntac’s system for capturing and returning all the leaking waste water, the court wrote. Rather, the MPCA “seems to have simply ignored or overlooked evidence in the record that could suggest a contrary conclusion.”

Maccabee said she hasn’t heard a word from the MPCA since the 2019 ruling about whether the agency made any progress in implementing the court’s decision. “We don’t only want to win on paper, we want to win on the water,” she said.

Turns out, nothing has changed since the ruling. Healing Minnesota Stories emailed the MPCA and got a vague response:

Q: The 2019 Minnesota Court of Appeals ruling said that the two pumping sites at the Minntac basin aren’t addressing all of the surface water discharge. What, if anything, has the MPCA done in the past year to enforce these surface water standards? …

A: The Court of Appeals still has several things it is considering regarding the Minntac permit, including a possible sulfate variance. There is also the conflicting guidance in state and federal law. While the Court of Appeals continues to review the Minntac permit, the MPCA believes the facility needs to reduce its sulfate discharges.

That’s wishful thinking. U.S. Steel wins by delaying enforcement as long as it can. Minnesota’s clean waters lose.

Win #2: The MPCA should apply drinking water standards to Minntac’s groundwater pollution

This year, the Minnesota Supreme Court ruled the MPCA could require U.S. Steel’s groundwater pollution to comply with the state’s Class 1 water standards, the highest standard for drinking water.

U.S. Steel opposed applying the Class 1 standard. The MPCA, Fond du Lac, and WaterLegacy were on the same side on this issue. They won.

Without going into the legal arguments, consider this. According to the Minnesota Department of Health, 60 percent of state residents get their drinking water from community groundwater systems or private wells. It makes sense to apply Class 1 drinking water standards to groundwater.

Win #3: Groundwater that’s the functional equivalent of surface water needs to meet higher water quality standards

The Minntac basin is unlined. The aquifer below the basin is shallow. That mean a lot of the polluted water in the basin gets into the groundwater below. From there, it moves laterally outside the basin’s boundary and comes up in nearby surface water.

State rules set a 250 mg/L sulfate pollution limit in groundwater. (The chart above shows Minntac never came close to meeting either standard.)

Fond du Lac, WaterLegacy, and the MPCA argued that Minntacs’ ground water pollution was effectively the same thing as surface water pollution. (The technical term is the groundwater and surface water are “hydrologically connected.”) The more protective U.S. Clean Water Act standards should apply to Minntac’s groundwater pollution, they said.

Minntac viewed from Mountain Iron

The 2019 Minnesota Court of Appeals decision ruled against Fond du Lac and WaterLegacy. But this year’s Minnesota Supreme Court decision reversed that decision, saying that Minntac’s groundwater pollution was the functional equivalent of surface water pollution — the stricter federal standards should apply.

Said Maccabee: “Minntac is still polluting the groundwater, It is still polluting the surface water, still decimating wild rice, and still killing … fish.”

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The Minnesota Supreme Court ruling wasn’t much of a surprise, given a recent U.S. Supreme Court decision in County of Maui v. Hawaii Wildlife Fund. It ruled on a very similar groundwater pollution case and set an important precedent.

What’s surprising is that the MPCA never tried to use this argument itself. Knowing that Minntac’s groundwater pollution was getting into the surface waters beyond the basin, it didn’t try to apply the stricter surface water quality standards.

The MPCA could have regulated this all along, Maccabee said. The U.S. Environmental Protection Agency wanted the agency to do so, but it didn’t. “Now, it’s clear cut,” she said.

The MPCA has acknowledged its own ineffectiveness. It wrote the following in its 2018 final order approving Minntac’s water discharge permit:

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.

The [water discharge] permit for the facility must be reissued to ensure that continued operation of the facility will protect surrounding waters.

MPCA 2018 Order for MinnTac wastewater discharge permit

No, the permit didn’t need to be reissued. U.S. Steel evaded permit requirements by making promises then not fulfilling them. After decades of this kind of behavior, the solution is not to reissue a permit and hope for improvements, but to pull the permit until Minntac has the improvements in place.