Agate continues to follow the intractable pollution problems at U.S. Steel’s Minntac mine wastewater pond. Check out earlier stories for background:
The legal issues surrounding Minnesota’s largest taconite mine are complicated, but people concerned about a possible future of copper-nickel mines in the water-rich northern part of the state look at Minntac’s history and worry that the state’s regulatory agencies may not have the backbone to enforce state laws on any kind of mine.
The most recent developments put U.S. Steel before the Minnesota Supreme Court on November 9, 2020, facing off against the company’s usual opponents, the Fond du Lac Band of Lake Superior Chippewa and the environmental group Water Legacy. In an unusual twist, this time the Minnesota Pollution Control Agency (MPCA) stood on the same ground as the two mine critics, complaining about U.S. Steel’s intransigence: “For twenty years, delaying compliance with state water law requirements has been U.S. Steel’s modus operandi,” the agency complained in its brief.
The back story
Ironies abound in this case. During all those twenty (or more) years, the MPCA exhibited enormous patience with the company’s reluctance to do what would be required to clean up the massive amounts of sulfate and other pollutants seeping through containment dikes and degrading wetlands and rivers surrounding the waste pond.
Just two years ago, the agency declined to join a lawsuit planned by the federal Environmental Protection Agency to force U.S. Steel to clean up its mess. When EPA inspectors visited the Minntac plant in Mt. Iron in September, 2017, they found “elevated levels of multiple pollutants” in wetlands and surface waters adjacent to the 8,500-acre tailings basin. The basin stores fine particles and water from taconite processing. The report referred to U.S Steel modeling that suggested the pollutants were moving “under the sheet-pile wall… before discharging to the wetland area.” Several of the measured parameters indicated compromised water quality. They found at least five unauthorized discharges from the settlement pond, and noted that the basin did not have a required stormwater permit. In a nine-page report issued in February, 2018, a section marked “confidential” recommended that the EPA “refer the matter to the U.S. Department of Justice and pursue consent decree to address violations and implement remedial actions.” The report also notes that MPCA was invited but declined to pursue a joint enforcement action.
The pollution was no surprise to the MPCA, which has been wrangling with U.S. Steel since the plant’s discharge permit expired nearly 30 years ago. (It is standard practice when a permit expires to allow the discharger to continue operating under the terms of the expired permit. In fact, the MPCA is struggling with a huge backlog of expired permits, many of them for taconite mines.) But at the time the feds were ready to act, the MPCA had been working on a new permit that it hoped would solve many of the problems. That new permit was at least in part the result of a separate lawsuit that had been filed in November, 2016 by the Minnesota Center for Environmental Advocacy, the Save Lake Superior Association, and Save Our Sky Blue Waters, alleging the state was failing to protect Minnesota’s waters. (See Timeline.) It was settled with the agency’s commitment to issue a new permit. Given the Trump administration’s deference to states on environmental enforcement and the state’s lack of interest, the legal action contemplated by the EPA evaporated.
The MPCA issued the new permit on November 30, 2018.
A sensitive place
Minntac’s unlined tailings pond straddles the Laurentian Divide and sends 2000 gallons per minute of wastewater into the marshy headwaters of three watersheds: the Dark River, a trout stream; the Sand River, which flows into Lake Vermilion; and the West Two River, which flows into the St. Louis River and then into Lake Superior. In recent years, all these rivers have had much higher levels of sulfate than other nearby streams. Tribal groups say they were once rich with wild rice, which began declining soon after the plant came online.
As scientists now understand, wild rice is highly susceptible to sulfate pollution. Minnesota has on the books a decades-old limit of 10 mg/liter of sulfate in wild rice waters, but that standard has rarely been enforced. Calculations show that at Minntac’s property boundary, the sulfate concentration exceeds not only the wild rice standard of 10 mg/liter, but even the much more generous standard of 250 mg/liter set for drinking water.
Natural sulfate levels vary widely in Minnesota’s waters. In the northeastern part of the state, sulfate tends to be very low, so the dramatically increased concentrations introduced by mining water are cause for concern due to potential impacts on human and environmental health. In particular, sulfate can contribute to the transformation of mercury into a biological form, methylmercury, which can build up in the food chain and cause neurological damage. A Minnesota Department of Health study in 2010 found ten percent of newborns living along Lake Superior’s Minnesota shore had excess burdens of mercury in their blood.
In the 30 years that U.S. Steel and the state have been haggling over permit conditions, the company has floated half-a-dozen solutions for the sulfate problem, tried some, rejected most, and has so far installed two pump-back systems to return polluted water from the adjacent wetlands back into the pond. But these are not designed to stop the infiltration of pollutants into the surrounding natural water systems.
In a striking pattern, U.S. Steel typically proposes to test one control method or another; the tests take years to complete, and the company reports that they don’t work. Meanwhile both the mine and the regulator find reasons to put off permitting. In May, 2016, the MPCA chose to delay writing a permit until it settled on a new standard for sulfate in wild rice waters. But after years of study, the agency in April, 2018 gave up on its plan for an updated standard. Accordingly, the permit issued in 2018 includes no limit on sulfate to protect wild rice waters, but does include a requirement to reduce sulfate concentrations in the tailings basin to 800 mg/liter in five years and 357 mg/liter in ten years, with an eventual goal of meeting downstream surface water and groundwater quality standards.
In the Minnesota Court of Appeals
The 2018 permit met resistance from the beginning. In separate actions, U.S. Steel challenged the MPCA’s application of Class 1 standards to groundwater, and Water Legacy and the Fond du Lac Band challenged both the MPCA’s position that the Clean Water Act does not protect groundwater and the agency’s decision not to apply specific, numeric limits on pollution in the basin.
Under Minnesota rules, parties challenging state agency actions must exhaust all remedies within the agency and then bring a case in the Court of Appeals. The parties filed their appeals in April, 2019.
The ruling, issued in December, 2019, gave everyone something and no one everything.
The court agreed with U.S. Steel and the MPCA that the Clean Water Act does not apply to groundwater. This would appear to be mooted by the U.S. Supreme Court’s Maui ruling, which came in April, 2020. The high court found that the nation’s bedrock water quality law does indeed permit such regulation.
On the other main questions, the Appeals court agreed with U.S. Steel that the MPCA should not apply Class 1 standards to groundwater, but agreed with Fond du Lac and Water Legacy that the agency hadn’t provided convincing arguments that specific standards should not be applied.
All the parties appealed that ruling to the Minnesota Supreme Court.
To be clear, this about more than local pollution of waterways by one mine. At stake is how the state can protect its groundwater, which is where most of us get our drinking water.
The Minnesota Supreme Court during Covid
On Monday morning, November 9, Minnesota Supreme Court Chief Justice Lori Gildea sat in the courtroom, behind the ornately carved wooden bench, flanked by the U.S. and Minnesota flags and backed by scarlet floor-to-ceiling curtains. The other justices and the attorneys sat in offices in the building, connected via Zoom.
For an hour they wrestled in the depths of Minnesota’s extensive and complicated laws protecting the state’s waters, both surface and groundwater.
Speaking for the MPCA, attorney Stacey Person said the law is clear, but it requires close reading. “The law first tells us that groundwater is classified for its use – now or in the future – as a source of drinking, culinary, or food processing water. Then, the rules say that all water in the state that is or may be used for those uses is a Class 1 water,” she said. In other words, all groundwater is classified for use as drinking water, and all drinking water is Class 1 water. “Therefore, groundwater is Class 1 water,” she said. And that means it requires the highest levels of protection.
“This is so plain that in the forty-odd years that MPCA has been applying these exact rules in precisely this manner, the regulated community has never questioned it,” Person continued. “Even U.S. Steel itself has never been confused about whether these rules applied to it. For the last many decades, U.S. Steel has accepted that it needed to comply with Class 1 groundwater standards and has invested a lot of money to determine how to do so.”
The reason why groundwater needs to be protected so carefully, she said, is in its nature: “It exists in interconnected aquifers where pollution can spread easily from one source to another. Once the pollution gets into that aquifer it’s extremely hard to get it back out; it’s hard to clean it up.”
She also warned that upending this interpretation would rob the state of its ability to protect valuable groundwater resources until some new approach could be developed.
U.S. Steel attorney Jeremy Greenhouse focused on different wording in Minnesota rules, which describe the state’s ability to require control measures to the extent necessary that the pollution, “upon reaching the water table, may actually or potentially preclude or limit the use of the underground waters as a potable water supply.”
Justice Paul Thiessen asked Greenhouse to clarify what that wording meant. Greenhouse emphasized the need to show that the pollution would prevent the water from being used as a potable water supply.
Thiessen: “So they have to do an analysis that would say that any pollution flowing from the tailings basin into the groundwater is going to affect the potable water supply?”
Greenhouse: “I think that’s correct.”
Thiessen: “What about a circumstance where the natural condition of the water would be useable for potable water, but like in this case, where there’s a significant economic and social need to keep this mine going?”
Greenhouse responded by reframing the question: “Given the clear goal and importance of protecting groundwater, does a project like this, given all the circumstances, amount to a situation where we would allow the water to be degraded to a certain extent for the benefit of this socio-economic purpose, and if so, what are the controls that we’re going to put in place?” he asked. “And I think that’s a conversation that needs to be had in this case.”
He seemed to imply that U.S. Steel would never be able to clean up its wastewater enough to be used as drinking water. That is essentially the company’s position since 2014, when it asked the MPCA to reclassify the waters near the waste pond, and, a year later, to modify permit conditions based on a site-specific water quality analysis.
Greenhouse said the law does not classify all groundwater as Class 1 water. “The Class 1 standards are in effect a subset of water that is potable… and the Department of Health has told us what you need to do to meet [its requirements].”
Minnesota Department of Health standards are looser for sulfate and some other pollutants than MPCA standards. That’s because higher levels of sulfate are not harmful to humans, at least not directly, although they may contribute to mercury methylation.
Water Legacy attorney Paula Maccabee pointed out that Greenhouse was referring to a separate set of statutes governing the Minnesota Department of Health, which are not intended to diminish the MPCA’s authority.
Associate Justice Gordon Moore wanted to know why U.S. Steel had never objected to the groundwater standard before.
Greenhouse: “When you’re a regulated party working in a permitting proceeding, the life of your company rises and falls on the PCA’s regulatory oversight of your project,” he explained. “So you naturally want to comply with the PCA, cooperate with the agency, so if the agency is saying these are the applicable standards, you’re going to try to work with the agency and not immediately take a contrary position that you would ultimately take in the litigation,” he said.
Anyone who has watched the permit process at Minntac over the years would question whether this argument is the “ultimate” position that U.S. Steel will take.
U.S. Steel asked the Minnesota Supreme Court to affirm the Court of Appeals ruling; Water Legacy and the Fond du Lac Band want the lower court ruling reversed, so that the erroneous ruling on Clean Water Act regulation of groundwater won’t provide a precedent for other cases, and so that the MPCA can continue to regulate groundwater as Class 1 water. After the court rules, probably early in the new year, the permit will go back to the MPCA for more work.
Meanwhile, Minntac’s wastewater pond continues to leak 2000 gallons per minute of polluted water into rivers that flow into Lake Vermilion and Lake Superior. The court’s decision could tell us whether this is acceptable.
Activists watching the Minntac case have noted the following similarities between Minntac and the proposed PolyMet copper-nickel mine: both have unlined tailings basins; neither has water quality-based effluent limits written into the permit; the predominant requirement for controlling pollutants in the permit is “monitor only;” and both use problematic interpretations of groundwater requirements under the Clean Water Act.
1967 Minntac begins operation
1987 MPCA issues water discharge permit
1992 Permit expires; Minntac continues operating on expired permit.
2000 MPCA issues letter of warning to U.S. Steel about high sulfate concentrations.
2001-2011 U.S. Steel and MPCA negotiate various schedules of compliance.
2010 U.S. Steel builds a seep-collection-and-return system on the east side of the basin.
2013 MPCA requires U.S. Steel to submit sulfate groundwater reduction plan.
2014 MPCA begins drafting new permit
December, 2014 U.S. Steel asks MPCA to reclassify waters near the waste pond.
October, 2015 U.S. Steel applies for modification of certain water quality standards.
November 9, 2016 MCEA, Save Lake Superior Association, Save Our Sky Blue Waters sue MPCA for failing to protect waters around Minntac.
November 15, 2016 MPCA puts permit out for public comment.
December 2016 U.S. Steel requests variance and contested case hearing on permit.
February, 2018 EPA inspectors report on pollution at Minntac.
Nov. 30, 2018 MPCA denies U.S. Steel request and issues new permit requiring U.S. Steel to reduce sulfate at property boundary to 250 mg/liter by 2025, and in-basin sulfate to 357 mg/liter by 2028. Also requires U.S. Steel to choose a sulfate-reduction technology within 54 months of permit issuance.
April 2019 Fond du Lac Band, WaterLegacy and U.S. Steel appeal permit conditions to the Minnesota Court of Appeals.
December 2019 Court of Appeals decision defers to MPCA’s interpretation that Clean Water Act does not require regulation of effluent to groundwater; says MPCA’s application of class 1 standards to groundwater was in error; and says MPCA did not take “hard look” at the need for specific limits.
January 2020 Fond du Lac, WaterLegacy, US Steel and the MPCA file separate petitions for review of the matter to the Minnesota Supreme Court.
Spring 2020 U.S. Steel builds a seep-collection-and-return system on the west side of the basin.
April 2020 U.S. Supreme Court issues Maui decision: Clean Water Act regulations apply to groundwater if the pollution is the “functional equivalent” of a direct discharge from a point source into navigable waters.
November 9, 2020 Minnesota Supreme Court hears oral arguments on water quality dispute in Minntac permit. Decision expected early in 2021.