WaterLegacy, et al. Win Reversal of EPA's Mesabi Nigget Variance Approval

WaterLegacy, Fond du Lac and Grand Portage Bands, Minnesota Center for Environmental Advocacy Succeed in Overturning Mesabi Nugget Variance

SAINT PAUL, MN, March 10, 2014 – WaterLegacy, along with the Fond du Lac and Grand Portage Bands of Lake Superior Chippewa and Minnesota Center for Environmental Advocacy, have succeeded in resolving their landmark Clean Water Act lawsuit against the EPA in federal court, WaterLegacy et al. v. United States Environmental Protection Agency, et al.

The environmental groups and the Bands sued the EPA last June, asking the Court to overturn and remand a decision by the EPA that approved a Minnesota Pollution Control Agency Variance for Mesabi Nugget’s Hoyt Lakes iron nugget processing plant. This Variance allowed Mesabi Nugget to discharge four pollutants in excess of Minnesota’s state rules. WaterLegacy asserted that these pollutants would be toxic to aquatic life as well as harmful to wild rice.  Today’s voluntary motion by the EPA to vacate and remand its own Variance approval decision sets the stage to require Mesabi Nugget to comply with Minnesota pollution standards.

States Paula Maccabee, Counsel and Advocacy Director for WaterLegacy,  “WaterLegacy is very pleased that the EPA has stepped forward to recognize that approval of the Variance was a mistake. We hope to be able to work with the EPA to ensure that mining facilities throughout the Lake Superior Basin follow Minnesota’s legal rules that protect clean water, wild rice, and fish.”

Continues Maccabee, “This case provides an important test. Minnesota may have stringent environmental rules, but they only work if they are enforced. The best way to create incentives for companies to invest in reverse osmosis and other pollution control treatment is to require that they comply with the law.”

Based on an agreement with WaterLegacy, the Bands, and MCEA, the EPA’s unopposed motion asks the Court to vacate the EPA’s approval of the Mesabi Nugget variance and states that, on remand, the EPA will disapprove the Variance. Once the Court grants the motion, the parties will stipulate to dismiss the case. After the Variance is disapproved, it is unknown whether Mesabi Nugget will take steps to comply with pollution limits or ask for a new Variance.

WaterLegacy Files Federal Lawsuit over Mesabi Nugget Variance

On June 3, 2013, WaterLegacy, represented by Paula Maccabee, filed suit in Minnesota Federal District Court asking the Court to overturn as “arbitrary and capricious” the U.S. Environmental Protection Agency (EPA) decision to allow the Mesabi Nugget iron plant a “variance” from complying with water quality standards.

Similar lawsuits were filed by the Fond du Lac and Grand Portage Bands of the Lake Superior Chippewa.

The EPA variance would allow Mesabi Nugget to violate water quality standards for total dissolved salts, bicarbonates, hardness and ionic conductivity, although these pollutants can harm the aquatic food chain and natural stands of wild rice. Both Mesabi Nugget and regulating agencies agree that water pollution treatment is feasible and commercially available to provide compliance with water quality standards.

In explaining the litigation to news reporters, WaterLegacy explained, “What we are really saying is that Minnesota water quality standards apply to everyone, including the mining industry, and that the standards should be applied and enforced rather than making exceptions for the convenience of the industry.” Read more about the case in the Star Tribune and on Minnesota Public Radio’s web site.

Learn more by reading WaterLegacy’s Complaint.

WaterLegacy Challenges Mesabi Nugget Water Pollution and Proposes Water Quality Treatment

State Review Process

In comments filed on February 18, 2012, WaterLegacy opposed the issuance of a variance for Mesabi Nugget pollution that would permit the iron nugget facility to violate water quality standards for bicarbonates, hardness, total dissolved solids and specific conductance and discharge chemicals that are toxic to the aquatic system. WaterLegacy requested that reverse osmosis water pollution treatment be required and that impacts of the chemical cycle of sulfates on wild rice be studied to protect downstream stands of natural wild rice. The initial permit would have allowed an indefinite water quality violation.

In response to comments, the Minnesota Pollution Control Agency (MPCA) proposed an additional 9-year variance (in addition to the 7-year variance since Mesabi Nugget’s prior permit application). The standards that Mesabi Nugget would be allowed to violate were enacted almost 40 years ago and scientific evidence shows that the discharge is already toxic to aquatic species. The MPCA alleged that water pollution treatment was not feasible, although reverse osmosis would enable Mesabi Nugget to meet pollution standards.

WaterLegacy supplemented comments to the MPCA on October 23, 2012. Despite comments and concerns of diverse groups and tribal natural resources staff, the MPCA Citizens’ Board approved the Mesabi Nugget variance for transmittal to the  U.S. EPA, with one dissenting vote. Although, technically, the NPDES/SDS permit for Mesabi Nugget cannot be issued unless and until the EPA approves the variance allowing extended non-compliance with water quality standards, the MPCA resolved to approve the Mesabi permit.

Federal Review Process

No variance from water quality standards can be allowed without EPA approval. The U.S. EPA sent a February 29, 2012 comment letter raising concerns about the Mesabi Nugget permit and variance. 

Read EPA's comment of February 29, 2012.

WaterLegacy has engaged in an ongoing dialogue with EPA staff, including phone calls, detailed written comments and communication of legal research suggesting that the proposed Mesabi Nugget variance would violate federal law.

On November 8, 2012, WaterLegacy sent detailed comments to the EPA identifying ways in which the proposed Mesabi Nugget variance failed to meet the requirements for a variance under federal law.

Read WaterLegacy Mesabi Nugget Comment to EPA of November 8, 2012.

On December 10, 2012, WaterLegacy sent a supplemental email citing federal regulations that establish a clear 5-year limit for any variance applicable to water quality standards in the Lake Superior Basin, where Mesabi Nugget discharges its pollution, citing 40 C.F.R. §132, Appendix F. Procedure 2 of Appendix F, Variances from Water Quality Standards for Point Sources which states:

Maximum Timeframe for Variances. A WQS variance shall not exceed five years or the term of the NPDES permit, whichever is less. A State or Tribe shall review, and modify as necessary, WQS variances as part of each water quality standards review pursuant to section 303(c) of the CWA.”

WaterLegacy’s research confirms that the proposed Mesabi Nugget variance would violate federal as well as state law.

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