What is 8,700 acres in size, is located in the headwaters of international waters, and has effectively resisted permit controls on pollution for a quarter of a century? The Minntac Tailings Basin. Despite many advocacy efforts, U.S. Steel’s Minntac Tailings Basin continues to evade compliance with Minnesota water quality standards and federal Clean Water Act requirements.
Minntac Request for Variance from Minnesota Water Quality Standards for Tailings Basin Water Pollution
In 2017, U.S. Steel requested a variance to allow the Minntac Tailings Basin to continue to violate Minnesota water quality standards for sulfates that degrade downstream wild rice and various salts and ions that are toxic to the aquatic ecosystem that supports fish.
Although the Minnesota Pollution Control Agency (MPCA) proposed to deny the requested variances, the MPCA hedged on its policy position, rather than concluding that U.S. Steel’s variance requests failed to meet the requirements of state and federal law and must be denied.
The MPCA, instead, argued that a variance is not needed because no time for compliance would be set:
[T]he Commissioner proposes to extend the final compliance date in the Draft 2016 Permit to December 30, 2025. . . If additional site investigations of groundwater movement conducted under the permit compliance schedule demonstrate that the final limit cannot be met by this date, the schedule can be modified to account for the new information. Because of this proposed change to the schedule in the Draft 2016 Permit, no variance is necessary at this time.
The Commissioner finds that the relief requested in the form of a variance from select surface water standards is unnecessary because similar relief is already provided by the schedule of compliance within the Draft 2016 Permit. The Draft 2016 Permit, while listing the applicable water quality standards at surface water monitoring stations, does not define the date when these limits would be enforced . . .Thus, the Draft 2016 Permit provides U.S. Steel sufficient time to meet limits by the method of its choosing and there is no need for a variance.
WaterLegacy opposed the U.S. Steel Minntac variance, concluding:
Although the MPCA has proposed to deny U.S. Steel’s applications for variances, the Agency failed to assert a commitment to control Minntac tailings basin pollution in accordance with the Clean Water Act.
WaterLegacy finds the MPCA’s rationale troubling. Federal regulations don’t allow schedules of compliance that fail to meet applicable statutory deadlines under the Act. . . For NPDES permits, “after July 1, 1977, permits may not contain compliance schedules for effluent limitations based on water quality standards adopted before July 1, 1977.”
MPCA’s proposal to delay compliance with Minnesota groundwater quality standards until 2025 and to delay compliance with surface water quality standards until at least 2038 is inconsistent with even the most anemic interpretation of the Clean Water Act.
U.S. Steel’s failure to comply with water quality standards at the Minntac tailings basin is not a new problem. Since U.S. Steel’s NPDES/SDS permit for the Minntac tailings basin expired in 1992, the MPCA has spent more than a quarter of a century temporizing with the company and extending deadlines and schedules for compliance. The Agency may perceive that this makes regulators appear reasonable, but it is more likely that it only makes regulators appear weak.
READ WaterLegacy’s Comments Opposing Minntac Variance (Jan. 24, 2018) – Exhibits available on request.
Minnesota Pollution Control Agency (MPCA) Draft Minntac Tailings Basin Water Pollution Permits
Pressured by WaterLegacy’s Petition to Withdraw State Authority to Regulate Water Pollution and litigation filed by other environmental advocates, the Minnesota Pollution Control Agency (MPCA) formally noticed a draft Minntac Tailings NPDES/SDS wastewater discharge water pollution permit in 2016.
The MPCA’s draft permit for the Minntac Tailings Basin failed to require compliance with Minnesota water quality standards or the federal Clean Water Act.
November 2016 public draft Minntac Water Pollution Permit
- No compliance with Minnesota’s sulfate limit of 10 parts per million in wild rice waters. Minntac tailings seepage has already decimated wild rice in the Sand River and Sandy and Little Sandy Lakes.
- No monitoring, let alone limits for metals like copper and zinc that seep out from the Minntac Tailings Basin at levels that violate Minnesota rules to protect fish and aquatic life. The permit would allow levels of salts and ions that destroy the aquatic food chain.
- Allowing high levels of sulfate to flow downstream, increasing the levels of toxic methylmercury in fish in waters that are already impaired due to high mercury, such as the Sturgeon River, Little Fork River, Rainy River and Lake of the Woods.
- The draft permit doesn’t limit manganese in groundwater or surface drinking water to the levels set by the Minnesota Health Department to protect infants and children from brain damage.
- Failure to regulate pollution collected in the Tailings Basin and directly discharged to streams and wetlands through groundwater seepage.
This permit, “stands the Clean Water Act on its head and lets the polluter set the standard” says Paula Maccabee, Advocacy Director and Counsel for WaterLegacy, in the St. Louis County Timberjay’s story on the proposed Minntac permit.
READ WaterLegacy’s comments opposing the draft Minntac water pollution (NPDES/SDS) permit and recommending specific changes to control pollution, comply with the Clean Water Act and protect Minnesota waters
December 2014 pre-publication draft Minntac Water Pollution Permit
After nearly three decades of pollution in violation of Minnesota water quality standards, the Minnesota Pollution Control Agency (MPCA) finally suggested that they would prepare a pollution control permit in 2014. A “pre-publication” draft of the permit was released to U.S. Environmental Protection Agency (EPA) staff, tribal staff and a few stakeholders, failed to require Minntac to comply with water quality standards by any specific date and failed to require seepage from the huge, 13-square-mile tailings impoundment to comply with the Clean Water Act when this pollution affects wetlands, streams and wild rice beds.
READ in the Star Tribune about the failure to regulate pollution at the Minntac tailings basin, the destruction of wild rice and mercury pollution in fish in the Star Tribune. “Minntac is a poster child for failure to regulate pollution,” said Paula Maccabee, attorney for WaterLegacy.
READ WaterLegacy comments on the inadequacy of the December 2014 Minntac tailings basin pre-publication draft water pollution permit: WaterLegacy comments explaining, “This document neither requires compliance nor schedules events that will predictably lead to compliance with water quality standards. There is no date in this document – ever – by which compliance with water quality based effluent limits is required.”
Also read compelling comments of the EPA and comments of the Fond du Lac and Grand Portage Bands of the Lake Superior Chippewa.
Background – Minntac Pollution and Expansion
Minntac Mine Expansion without Environmental Review (2012)
WaterLegacy has opposed expansion of the Minntac mine without environmental review to prevent harm to water quality, wild rice and human health.
The Minntac mine has been continually and incrementally expanded, without requirement by either federal or state agencies for a comprehensive environmental impact statement (EIS) to evaluate harm to the environment or alternatives to minimize that harm. When Minntac sought a Clean Water Act Section 404 wetlands destruction permit from the U.S. Army Corps of Engineers in 2012 to allow an additional 483-acre “extension” of the mine in 2012 and wetlands destruction, WaterLegacy called for an EIS and an investigation of water quality issues and alternatives to minimize environmental impacts.
READ WaterLegacy’s (2012) comments requesting an EIS for Minntac’s proposed mine expansion:
Despite the magnitude of Minntac’s overall impacts on water resources and land usage, Minntac has, to date, avoided the scrutiny of an EIS and any legal obligation to provide alternatives to prevent, minimize or mitigate environmental effects of its mining facilities.
According to the federal Clean Water Act, a wetlands destruction permit cannot be granted unless the State where the project is located certifies that the project is and will be in compliance with state and federal water quality standards. WaterLegacy opposed Minnesota’s certification of the Minntac 483-acre expansion as contrary to both state and federal law:
READ WaterLegacy’s (2014) comments opposing Clean Water Act certification for Minntac’s proposed mine expansion. These comments emphasize:
Neither federal nor state law allows the MPCA to certify the proposed Minntac Mine Expansion. This project is a textbook case of what Section 401 was intended to prevent – the increase of discharge that already violates water quality standards by a polluter operating outside the law for a matter of decades.
WaterLegacy is concerned that, where mining is concerned, Minnesota state regulators are unwilling or unable to say ‘no,’ regardless of the facts or the law. In the case of the Minntac mine and tailings basin, the lack of regulatory constraints may have already impaired waters used for the production of wild rice and for aquatic life and increased mercury contamination of fish, impairing their use for consumption. This wholesale regulatory failure is more troubling since the resources impaired are vital to subsistence anglers and gatherers, including Minnesota tribes, whose treaty rights are also compromised by the failure of regulatory action.
MPCA Closed Door Negotiation with Minntac on “Schedule of Compliance” without Requirement to Treat Wastewater (2011)
In WaterLegacy’s review of documents pertaining to the Keetac Mine Air Pollution Permit in 2011, we learned that the Minnesota Pollution Control Agency (MPCA) had negotiated behind closed doors a “Schedule of Compliance” that removed any requirement that U.S. Steel treat wastewater from the Minntac tailings basin. Rather than amend Minntac’s water pollution permit in an open and public process, where citizens, Indian tribes, the EPA and other stakeholders would have an opportunity to comment, the MPCA signed an agreement that included no requirement that the Minntac tailings basin would ever meet water quality standards for sulfates and other pollution.