An Agate Original

Pittsburgh-based U.S. Steel, owner of the sprawling Minntac taconite mine near Virginia in the heart of Minnesota’s Iron Range, is suing the Minnesota Pollution Control Agency (MPCA) over a draft permit the agency issued in November. It follows a lawsuit filed last fall by the Minnesota Center for Environmental Advocacy (MCEA), along with the Save Lake Superior Association and Save Our Sky Blue Waters. The environmental groups dropped that suit when the agency agreed to issue a revised permit for Minntac within nine months.

The mine’s water permit expired 25 years ago.

U.S. Steel’s lawsuit says the state should not issue a permit until it changes water quality standards and classifications of the streams the plant uses to dispose of its wastewater. It says if the state requires it to meet existing water quality standards, it could unnecessarily cost the company hundreds of millions of dollars.

MCEA attorney Hudson Kingston said the U.S. Steel suit appears to be a bid for time. “We have a settlement with the Pollution Control Agency that requires issuance of a permit within nine months,” Kingston said. “They’re trying to get that delayed for perhaps years.”

In an emailed statement, MPCA said it rejects U.S. Steel’s assertions. The litigation “will further delay any resolution to this matter,” the statement said.

Minntac’s wastewater basin has high levels of sulfate and other pollutants, which are released untreated into the Dark River and the Sandy River system. Minntac has been dickering with the state for more than 15 years on how to deal with the problem.

The draft permit has already attracted criticism from U.S. Steel itself, as well as from environmental and tribal groups, including the Grand Portage and Fond du Lac Chippewa Bands. The dueling lawsuits are just the latest twist in a decades-long dance among Minnesota’s powerful mining industry, state regulators, legislators, and environmental activists. And now attention is focused on a new kind of mining, as a plan for the PolyMet copper-nickel mine makes its way through the permitting process. “If people are looking at U.S. Steel to see how Minnesota regulators will handle sulfide mining, they should be concerned,” said Kathrine Hoffman, MCEA’s executive director. “Right now our taconite mines are not complying with our water quality standards. How do we know that sulfide mines will be held to the law?”

Hoffman made those comments to Minnesota Public Radio in early 2015, the last time the Minntac permit was in the news. U.S. Steel was fighting an earlier draft of the permit that was circulating among interested parties at the time. Company lobbyist Chris Masciantonio told a legislative committee that the state’s sulfate standard for wild rice waters was too stringent. “This ’10 standard’ is going to be a big problem for Minnesota if it isn’t corrected,” Masciantano said. “Ten” refers to the standard that has been on the books since 1973, specifying that waters producing wild rice should have sulfate levels at or below ten milligrams per liter.

Responding to U.S. Steel’s complaints, Gov. Mark Dayton candidly observed that U.S. Steel would not “agree” to a permit enforcing that standard, seeming to imply that the global company has a choice about whether to comply with state rules.

Studying the standard: how we got here

The forty-year-old sulfate standard has been under attack from industry ever since the MPCA, responding to pressure from tribes and environmental groups, began taking steps to enforce it a few years ago. The agency has said it was not enforced for many years because not enough was known about wild rice and where it grows, or about industrial discharges of sulfate. In 2008 the DNR published an inventory listing 1,292 lakes or river/stream segments where “natural stands of wild rice were present or occurred in recent history.” That list was regarded as a work in progress, and the DNR, MPCA, and tribal groups have worked to update it over the years.

In 2011 the legislature directed the agency to investigate the science and determine if a new standard is  needed. In early 2014, a day before the agency was scheduled to announce the results of that research, Iron Range legislators exploded when they saw news reports suggesting that the evidence pointed to the existing standard as generally appropriate. The MPCA delayed release of the report for two weeks, and when it was finally issued, it emphasized the complexities of water chemistry and called for more research.

Perhaps hoping to avoid another outburst from Iron Range lawmakers, MPCA Commissioner John Linc Stine sent them a letter in November 2016, warning them that the agency was about to issue Minntac’s draft permit. The two-page letter listed some of the difficulties the agency has had in getting U.S. Steel to settle on a way to reduce its pollution. Since 2001, the state and the company have signed at least five different agreements, each committing Minntac to investigate various approaches and technologies to solve the problem.  “U.S. Steel’s decision to not fulfill its signed commitment to improve water quality in the tailings basin has left me no choice but to deal with this issue proactively to protect present and future water quality,” Stine explained in the letter.

U.S. Steel did not respond to repeated requests for an interview, but in 2015 the company’s general manager of environmental affairs, Tishie Woodwell, said the huge flows and heavy mineral concentration in the wastewater present big challenges for Minntac. “We don’t have any technologies that we’re aware of that would get us into compliance,” she said, suggesting it could take at least five years to find a way.

Permit tries to straddle the fence

In the recently released draft permit, the state is trying to reconcile two contradictory mandates. The existing standard was approved by the state and federal governments decades ago, and the federal Environmental Protection Agency says the state is obligated to enforce it until a new standard is promulgated and approved. But in 2015 and 2016 the Minnesota legislature passed bills prohibiting the MPCA from requiring any company to spend money on sulfate control.  Some environmental advocates say these laws contravene the federal Clean Water Act, and they are evidence in an effort to revoke the state’s ability to administer federal laws (see below).

To comply with those laws, the draft permit “contains no sulfate limits for wild rice,” according to the MPCA’s Fact Sheet accompanying the draft permit. Instead, when the new standard is adopted, its requirements will need to be incorporated into the permit. Meanwhile, the agency proposes to give Minntac another ten years to continue studying options to reduce the contaminants in its discharges.

In a study conducted in 2004, the agency calculated that the facility’s effluent exceeded standards for bicarbonate, hardness, specific conductance, and total dissolved solids as well as for sulfate. These pollutants can degrade the entire food web in affected streams and lakes. Minntac’s effluent flows into two watersheds, the Dark River system to the northwest, which includes a rare trout stream segment, and the Sandy River system to the northeast, which flows into Lake Vermilion. On the Dark River side, sulfate has been measured at one hundred times the state standard; on the Sandy River side, sulfate was about 20 times the limit.

U.S. Steel’s lawsuit says the streams in question are not used for industrial or agricultural purposes and should not be required to meet standards set for those classifications. It says MPCA has been ignoring its request to have the streams reclassified. It also says the permit should not be reissued until the state decides on a new sulfate standard for wild rice waters.

Why does it matter?

Wild rice was once abundant and widespread in Minnesota; its range has been shrinking since European settlement altered land and water use in most of the state. Now found mostly in north central and north eastern Minnesota, wild rice is a key resource for tribal members, a source of both physical and spiritual sustenance. The DNR estimates harvesting the state grain contributes at least $2 million to the economy each year.  Wild rice stands also provide important food and nesting sites for waterfowl.

In addition to degrading wild rice beds, sulfate contributes to the formation of methyl mercury, the form that accumulates in fish and the people who eat fish. The state has slapped health advisories on many northeastern Minnesota streams and lakes, including those affected by Minntac’s effluent. In 2010 the Minnesota Department of Health found ten percent of infants living in the Lake Superior basin had methyl mercury concentrations at levels that could cause harmful health effects.

Now agency staffers are sifting through public comments on the draft permit. In more than 300 pages, interested parties express plenty of concern. A quick summary of the main points:

Minntac’s owner, U.S. Steel, disputes some of the facts, asserts that it would be impossible to meet the timelines, and asks for a site-specific standard for its discharges, exempting the mine from normal standards.

The EPA says the MPCA has an “incorrect understanding” of how ground water should be regulated, points out that the permit’s lack of firm deadlines violates federal rules, and says the permit doesn’t cover all the discharges it should cover.

The nonprofit Minnesota Center for Environmental Advocacy suggests that the MPCA’s approach to ground water appears aimed at eventually removing the entire mine from federal oversight, leaving it up to the state to control pollution.

The National Park Service reminds the MPCA that the state is required to prevent deterioration of water quality in Voyageurs National Park and the Boundary Waters Canoe Area Wilderness, worries about the methyl mercury problem, and requests more attention to the cumulative effects of mining activities in the region.

The Great Lakes Indian Fish and Wildlife Commission and other tribal groups complain that the permit uses “logical gymnastics” that “do not appear supported by the facts available,” that the permit is “no different” from any of the state’s previous 25 years’ worth of attempted control, and that it is “astounding” that U.S. Steel has operated without an updated permit for so long.

Minntac’s permit is at the top of a long list of expired mining permits that the MPCA has been trying to update. In 2013, with 48 mining permits expired, the state signed an agreement with EPA promising to try to eliminate the backlog within five years. So far there has been very little progress. EPA is currently investigating whether it should continue to allow Minnesota to administer federal water quality rules, responding to a petition from the non-profit group Water Legacy requesting that the feds revoke Minnesota’s authority because of the state’s lax enforcement in the mining sector. It’s not known if or how the new leadership at the EPA may affect this investigation.

Mining is not the only industry in Minnesota operating on outdated permits. According to the Director of the MPCA’s Industrial Division, Jeff Smith, about half of the agency’s air permits – about 150 permits — are backlogged. “Technically they are not ‘expired’ as long as the permittee has submitted an application prior to the expiration date,” Smith said in an email. “The permittee is allowed to operate and must comply with the existing permit conditions as well as any changes that happen in the law until such time as the permit is re-issued by the agency.”

Smith said the agency is working to reduce the queue, but it gives higher priority to permits for new or expanding facilities, which generally represent more of an environmental and human health risk.

The MPCA continues to refine its plans for a new wild rice sulfate rule. State legislation mandating the investigation requires the agency to propose a standard by January 2018. Some members of the agency’s advisory panel monitoring the research have offered sharp critiques throughout the process, and a legal challenge appears likely.

MPCA staff is reviewing public comments on the draft permit, with no estimate of how long that will take. No doubt lawyers are sharpening their arguments. And meanwhile Minntac continues to operate on an expired permit, with pollutants entering the waters surrounding the mine at levels that exceed current standards.

Follow the history:

MPR: Iron Range lawmakers, wild rice interests frustrated by agency’s moves on sulfate study. Feb. 28, 2014

MinnPost: MPCA issues early analysis of study on sulfates and wild rice, March 12, 2014

MPR: Dayton: Outdated clean water standard could doom mining industry, March 24, 2015

MinnPost: Despite pressure to lower Minntac sulfate emissions, status quo could last awhile, May 14, 2015

Agate: Minnesota puts taconite mine permitting “on pause,” May 9, 2016

MinnPost: Minnesota revises proposed standards to protect wild rice from sulfate pollution, July 20, 2016

Star Tribune: Environmental groups settle lawsuit against MPCA over Minntac’s long-expired water permit, December 8, 2016