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EPA Puts Increasing Pressure on Minnesota over Failure to Enforce Water Quality Standards for Mining Pollution

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The U.S. Environmental Protection Agency (EPA) is ramping up pressure on the state of Minnesota to demonstrate that Minnesota is c
omplying with the federal Clean Water Act.
 
This spring and summer, the EPA has sent letters to the Minnesota Pollution Control Agency (MPCA) requesting an Attorney General’s statement that Minnesota has the authority to control sulfate pollution despite laws enacted in 2015 and 2016 to block enforcement. The EPA also sent a letter questioning MPCA’s intend to control mining pollution. 
 
READ letters from EPA to the MPCA on the EPA’s dedicated web page, NPDES Petition for Program Withdrawal in Minnesota.

READ a detailed July 2016 update in the Timberjay explaining how EPA’s investigation appears to share the concerns about Minnesota’s failure to control mining pollution raised in WaterLegacy’s July 2015 petition. 
 
READ the Star Tribune’s July 2016 article, explaining EPA’s pressure on the MPCA to justify 2015 and 2016 laws exempting mining pollution from wild rice rules.
 
 
WaterLegacy has recommended to EPA that no new water pollution permits for PolyMet be approved until the mining permit backlog has been brought up to date. 
 
READ WaterLegacy's letter to the EPA in July 2016 recommending that EPA inform MPCA that PolyMet water pollution permits may not be issued until expired mining permits are updated. 

WaterLegacy also advocated to the EPA that new rules be adopted to allow EPA to step in to write up-to-date permits, when states, like Minnesota, allow expired permits to languish for years and even decades.

READ WaterLegacy’s letter to the EPA in June 2016 urging adoption of proposed draft rules that would allow EPA to take over expired mining permits to protect downstream water.
 
 
EPA Responds to WaterLegacy Petition, will Investigate Minnesota's Failure to Control Mining Pollution

Responding to a Summer 2015 petition from WaterLegacy, The federal Environmental Protection Agency has agreed to investigate the Minnesota Pollution Control Agency's failure to enforce the Clean Water Act and control mining pollution. The EPA has authority under federal regulations to remove a state’s authority to regulate water pollution if state actions fail to comply with and enforce the law.

While such investigations are not uncommon, “this the first time ever for this kind of an investigation in Minnesota,” said Paula Maccabee, legal counsel for the St. Paul-based WaterLegacy, which filed a petition last summer requesting the investigation. Maccabee said she is pleased that the EPA is taking WaterLegacy’s petition seriously. “I had thought that the EPA’s Draft Protocol, which we received at the end of December was pretty strong. This final version is even stronger.” (from EPA opens investigation of state’s mining regulation by the Timberjay)

EPA has posted the final protocol for their investigation to their website. You can view it here along with WaterLegacy's petition.

Read more about the EPA’s plans to investigate Minnesota’s regulation of mining pollution in the Timberjay and Duluth News Tribune.

Background

On July 2, 2015, WaterLegacy filed a petition under federal Clean Water Act regulations asking the U.S. Environmental Protection Agency (EPA) to remove the Minnesota Pollution Control Agency’s (MPCA) authority to regulate mining pollution.

The WaterLegacy Petition reveals how the MPCA has failed for years in its responsibilities to administer the National Pollutant Discharge Elimination System (NPDES) program in accordance with the Clean Water Act and federal EPA regulations.  In addition, laws passed by the Minnesota Legislature in 2015 interfere with MPCA’s compliance with the Clean Water Act to control sulfate pollution in wild rice waters, providing additional legal grounds for withdrawal of Minnesota’s water pollution authority.

Mining companies in Minnesota “are routinely contributing pollutants, including sulfate, bicarbonates, dissolved salts, specific conductivity and metals, such as copper, nickel and mercury to both immediate and downstream receiving waters,” reveals the petition. Yet despite the MPCA’s Metallic Mining Joint Priority Agreement with the EPA in 2013 to reissue up-to-date permits and regulate mining pollution, the petition charges “MPCA has made virtually no progress in addressing the backlog of out-of-date mining permits,” thus allowing mine pits, waste rock piles and tailings waste facilities to continue polluting Minnesota waters. The petition also lays out evidence that mining companies and their lobbyists have exerted “widespread and pervasive” influence to prevent the State from living up to its responsibilities to protect clean water and Minnesota citizens from mining pollution.

READ the WaterLegacy Petition for Withdrawal of Program Delegation from the State of Minnesota for NPDES Permits Related to Mining Facilities.

READ M. Helmberger, “Group asks EPA to regulate state’s mining industry” (July 8, 2015) in Northern Minnesota’s Timberjay

“The petition, which includes hundreds of pages of exhibits gathered by the organization through public information requests, reveals that mining companies on the Iron Range are routinely exceeding pollution standards for pollutants like sulfates, bicarbonates, dissolved salts, specific conductivity, and metals, such as copper, nickel and mercury to both immediate and downstream receiving waters. It also cites data showing that water bodies, like the St. Louis and Embarrass rivers, have seen significant declines in the numbers and diversity of aquatic organisms, including fish, as a result of mining discharges.”

READ M. Helmberger, “Regulating mining” (July 8, 2015) in Northern Minnesota’s Timberjay

“What Water Legacy’s petition lays bare is a case of the industry setting its own rules, essentially regulating the actions of Minnesota state government, rather than the other way around. Minnesota’s reputation for strong environmental laws is a paper tiger.”

READ R. Meador, “Citing MPCA weakness, group asks feds tostep in on mining's water pollution,” MinnPost (July 15, 2015)

“What I really wanted to hear was MPCA’s defense, if any, to Maccabee’s claims regarding the backlog of expired permits. . . By April 2013, the agencies had negotiated an agreement that required the MPCA to reduce the permits backlog by 20 percent per year until it was eliminated by July 1, 2018. But based on a public-records check, MPCA has made “virtually no progress” on keeping that commitment.”

Follow WaterLegacy on Facebook for breaking news on this Petition and our other efforts to hold Minnesota officials and politicians accountable for failure to control mining pollution.

Recent News:

  • Wild Rice, Birch Bowl - Photo by Jim Northrup
    Manoomin miinawaa nooskaachinaagan (wild rice and fanning basket) Photo by Jim Northrup

    Read WaterLegacy's Counterpoint: The science is clear: Protect our wild rice, a Star Tribune article by WaterLegacy Advocacy Director and Counsel, Paula Maccabee. "The Earth is not flat, there is no tooth fairy and sulfate limits are required to protect natural stands of wild rice."

  • When the Minnesota Pollution Control Agency circulated a "pre-publication" draft permit for the Minntac tailings basin, WaterLegacy filed comments about the State’s failure to regulate sulfate and other pollutants from the Minntac tailings basin. Criticism of the State’s regulatory approach by WaterLegacy and by the U.S. Environmental Protection Agency was highlighted in the Star Tribune and other media. "Minntac is a poster child for failure to regulate pollution," said Paula Maccabee, attorney for WaterLegacy.

  • WaterLegacy filed comments requesting stronger regulation as the Western Lake Superior Sanitary District wastewater plant’s pollution discharge permit comes up for renewal. Read a summary of the issues from MinnPost in January 2105.

Highlights of WaterLegacy's Work

Sulfide pollution from small sampling for copper nickel near Boundary Waters. Photo courtesy of Friends of the Boundary Waters Wilderness.

Ensuring that the PolyMet NorthMet sulfide mine, the first copper-nickel mine proposed in Minnesota, receives appropriate scrutiny from state and federal agencies to protect clean water, public lands, fish, natural stands of wild rice, public health, environmental justice and treaty rights through:

  • A multi-level campaign from 2009 through 2014 in collaboration with Minnesota Bands of the Lake Superior Chippewa and environmental allies, to analyze ongoing PolyMet environmental review documents, expose their deficiencies, engage citizens and protect environmental resources, environmental justice and environmental health.

    Read here WaterLegacy’s Comments and the opinions of experts who worked with WaterLegacy to analyze the most recent PolyMet Plan the Supplemental Draft Environmental Impact Statement, released in December 2013.

    Read here to learn about PolyMet health effect risks and the advocacy by WaterLegacy, medical and health professionals in Duluth and throughout the state to ensure that the PolyMet project does not adversely effect human health.

  • Detailed criticism of the PolyMet sulfide mine project in Comments on the draft environmental impact statement (EIS), in Comments on the proposed Land-exchange that would allow the open pit mine to be constructed on Superior National Forest land. And by challenging biased and inappropriate assumptions in modeling water quality risks of the PolyMet Project.

  • Research and advocacy to prevent destruction of aquatic resources of national importance and to require review and potential veto of the PolyMet project under the federal Clean Water Act. Read about Wetlands/EPA Authority (ARNI) and Clean Water Act certification.

Harvesting of wild rice, photo by D. Kakkak.

Ensuring that the wild rice sulfate standard is applied to protect wild rice from increased mercury methylation as well as impairment of manoomin, natural stands of wild rice.

  • Defending the wild rice sulfate standard in the face of a lawsuit by the Minnesota Chamber of Commerce on behalf of the mining industry and from attacks by the mining industry at the Legislature and in the Minnesota Pollution Control Agency administrative process.
  • Requesting that Minnesota waters that are impaired in their ability to sustain natural stands of wild rice be listed as "impaired waters" and analyzed to limit pollution under the Clean Water Act.
Map presented at Lake Superior Binational Forum by staff of Fond du Lac Band of Lake Superior Chippewa (2013).

Ensuring that discharge permits for mines in Minnesota are written and enforced to protect water quality and ensure the health of aquatic systems and people who drink water or eat fish.

Providing research and advocacy to protect water resources, public health, environmental justice and Minnesota's quality of life and economy from the threat of sulfide mining and to preserve and enforce Minnesota's water quality standards. Selected work:

  • WaterLegacy includes Environmental justice advocacy as an important part of all environmental review, whether at the state or the federal level.
  • A Mercury Pollution Law Review by WaterLegacy attorney, Paula Maccabee, describes legal limitations that should apply to prevent the PolyMet Project from increasing toxic levels of mercury in fish.
  • WaterLegacy worked with community activists to forestall the Minnesota Health Department's proposal to repeal groundwater quality standards for manganese, a pollutant from mining that affects the nervous system in children and adults.
  • Concerned about the historical mining company practice of creating corporations with limited assets and declaring bankruptcy when pollution liabilities increase, WaterLegacy has investigated the financial links between PolyMet and Glencore in its report PolyMet and Glencore an Overview.
  • WaterLegacy is helping to inform Minnesota residents regarding the potential impacts of mineral leases on private property.

 

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