As the federal government investigates whether it should take away Minnesota’s authority to regulate taconite mines, the state’s Pollution Control Agency has put most of the agency’s work on mining permits “on pause.” On an April 28th visit to Duluth to campaign for Gov. Dayton’s bonding proposal to clean up historic pollution in the St. Louis River, MPCA Commissioner John Link Stine said he has set the mining permit work aside in order to concentrate staff efforts on developing a standard for sulfate in wild rice waters. Wastewater from taconite mines is typically high in sulfate, which can damage wild rice beds.
“If we were to do three or four (mining) permits, there would be arguments about each of them, all with staff and resources dedicated to answering all those questions,” Stine said. “It would likely take longer to resolve all those questions than it will take us to get to the standard.” He said staffers continue to gather information from mines with expired permits, such as contaminant levels in wastewater discharged to streams. That information will enable the agency to “move on it when we have the standard to put in the permit,” Stine said.
Environmental groups expressed dismay over the MPCA’s decision to set permitting work aside. “To say we’re either going to write a rule or we’re going to issue permits doesn’t acknowledge that the agency exists to do both,” said Hudson Kingston, a staff attorney at the Minnesota Center for Environmental Advocacy. “This sulfate rule is important but it isn’t more important than everything else the agency has already committed to do including enforcing existing water quality standards that aren’t incorporated into these expired permits.”
As an example, Kingston pointed to new rules from the 1990s about pollutants such as arsenic and mercury that accumulate in animal tissue and can magnify as they move up the food chain. “Minnesota wrote very good rules but if you don’t incorporate that into permits your rules don’t go anywhere,” he said.
Many of Minnesota’s taconite mines are operating on expired permits – one expired 24 years ago – and the state promised the federal Environmental Protection Agency in 2013 that it would eliminate the backlog within five years. But the list remains largely unchanged. Industries are required to continue to meet the terms of expired permits, but those permits often do not reflect updated science and current rules.
Minnesota, like most other states, sets and enforces pollution rules under a system called “cooperative federalism.” Minnesota’s rules must be approved by the EPA, and the federal agency must be satisfied that the rules meet the requirements of federal legislation such as the Clean Water Act. Permits are supposed to be renewed every five years.
Issuing permits for mines is a complex, technically challenging process which often involves negotiation between the MPCA and the permittee. Typically the company proposes methods of pollution control and the agency must determine whether they will be effective. It usually takes months, often years, for the two sides to work out an approach acceptable to both.
As one example, the behemoth of Minnesota taconite operations, U.S. Steel’s Minntac mine near Virginia in the center of the Iron Range, has been operating on an expired permit since 1992. Minntac’s problem is that the scrubber that cleans air pollutants from one of the stacks has been adding tens of thousands of pounds of sulfate to the wastewater storage basin every year. Water from this basin flows into two different rivers, and the company’s calculations showed that at the property boundary, the sulfate concentration exceeded not only the current wild rice standard of 10 milligrams per liter, but even the much looser standard of 250 milligrams per liter set for drinking water.
U.S. Steel has been looking for ways to solve its water quality problems. Since 2001, the state and the company have signed at least five different agreements, each committing Minntac to investigate various approaches and technologies. Among them, a Sulfate-Reducing Packed Bed Reactor system, a water treatment system, and a plan to replace existing wet air pollution scrubbers with dry control devices. The MPCA agreed to this proposal in June, 2011. But within a few months the dry controls project ran into problems when the MPCA found several inadequacies in the company’s permit application. Since then, the company and the agency have negotiated but failed to work out disagreements over how to solve the problems.
To be sure, Minntac has made some improvements: it installed collection systems designed to capture polluted groundwater that flows into the two rivers and return it to the tailings basin, and it switched to a lower-sulfate source for process water. But the EPA has been frustrated with the lack of action on the basic problem, the high sulfate levels in Minntac’s wastewater.
There are currently about 19 taconite facilities with expired permits. Minnesota only has six active mining operations, but separate permits are often needed for the mine, the plants, the wastewater ponds, and other functions.
Several mines are closed due to low iron ore prices. Northshore Mining at Silver Bay is expected to reopen in May; United Taconite near Eveleth may reopen later this year. Hibbing Taconite has continued to operate through the downturn. U.S. Steel’s Keetac near Keewatin has been idle for about a year, and Minntac endured a shorter shutdown in 2015.
The MPCA’s Stine said the agency will issue a permit for the Northshore mine in Silver Bay this fall. But it will not include a limit for sulfate. The mine discharges to the Beaver River, which is not listed by the state as a water body that produces wild rice. In addition, a 2015 state law prohibits the agency from requiring expenditures on sulfate control before the state “refines” the sulfate standard.
Years of study lead to plan for variable standard
The current standard for sulfate in wild rice waters, ten milligrams per liter, has been on the books since 1973 but has never been enforced in the mining sector. The legislature directed the MPCA to do research to determine what the standard should be. In 2014, after three years of studies, the MPCA prepared a draft report concluding that the existing standard was “needed and reasonable.” But after an apparently stormy meeting with Iron Range legislators, the agency abruptly postponed official release of the report and re-wrote it. The new version emphasized remaining questions and the potential for iron in the water to mitigate toxic effects of sulfate.
Since then staffers have been tweaking a formula designed to protect wild rice in individual water bodies based on the water chemistry at each site. But Stine said it’s still an open question whether the formula approach will work. “I frankly haven’t settled in my own mind what the right approach will be,” he said. “There’s questions of predictability: companies like predictability, the public likes predictability, people who like wild rice want predictability, so that’s an important debate as we move to the rule.”
“A clear violation of the Clean Water Act”
The EPA’s investigation of the state agency was prompted by a petition from Water Legacy, a non-profit environmental group. Citing the stagnant permitting program, permits that allow long-term exceedances of state pollution standards, and legislative interference, the petition claimed that “mining industry influence over Minnesota officials is pervasive and undermines the ability of the state” to protect water quality. The EPA has laid out a protocol for its investigation that includes examination of documents and meetings with MPCA officials this summer and fall.
Water Legacy attorney Paula Maccabee said the MPCA’s decision to set aside permitting “seems both outrageous and a clear violation of the Clean Water Act.”
The MPCA plans to issue a draft technical support document later this spring, as the first stage in a rulemaking process for a potential new sulfate standard in wild rice waters. Legislation mandating the process requires it to be completed by January, 2018.
Stine was in Duluth to promote portions of Gov. Dayton’s bonding package. The governor wants to invest $12.7 million this year and a like amount in 2018 to help clean up historic pollution in the St. Louis River. The state funding would trigger $47 million in federal funds.
A version of this story appeared in MinnPost on May 2, 2016.