Minnesota Failure to Regulate Pollution

WaterLegacy Petition to U.S. EPA

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 EPA has the authority to remove a State’s delegated authority to regulate water pollution if a State fails to comply with the Clean Water Act and its implementing regulations.

The WaterLegacy petition was based on evidence that MPCA had 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.

In 2016, the EPA responded, taking the petition seriously. The EPA worked with WaterLegacy to develop a protocol for investigation of WaterLegacy’s claims and began the process of investigation itself. The full record of WaterLegacy’s petition and EPA’s response is available online. However, since the election of President Donald Trump in 2017, no additional work has been done at EPA to respond to WaterLegacy’s petition to withdraw MPCA’s Clean Water Act authority. Should the federal administration change, WaterLegacy will consider filing an update to our July 2, 2015 petition and requesting that EPA resume its investigation of the regulatory failures described in our petition.

WaterLegacy’s petition to EPA to withdraw MPCA’s Clean Water Act authority described the following primary concerns:
  • 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.”
  • Despite the MPCA’s Metallic Mining Joint Priority Agreement with the EPA in 2013 to reissue up-to-date permits and regulate mining pollution, “MPCA has made virtually no progress in addressing the backlog of out-of-date mining permits.” These expired permits for mine pits, waste rock piles, and tailings waste facilities allow continued pollution of Minnesota waters.
  • 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, including sulfate, mercury, and other toxic metals pollution.

Read the WaterLegacy Petition for Withdrawal of Program Delegation from the State of Minnesota for NPDES Permits Related to Mining Facilities, July 2, 2015

According to the news media,
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, “Group asks EPA to regulate state’s mining industry” (July 8, 2015) 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 M. Helmberger, “Regulating mining” (July 8, 2015) Timberjay

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.

Read R. Meador, “Citing MPCA weakness, group asks feds to step in on mining’s water pollution,” MinnPost (July 15, 2015)

What is the history of the EPA’s Investigation of MPCA Failure to Control Mining Pollution?

The EPA agreed to investigate the MPCA’s failure to enforce the Clean Water Act and control mining pollution.
While such investigations are not uncommon, “this [is] 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.”

Read “EPA opens investigation of state’s mining regulation,”  Timberjay (March 22, 2016)

Through fall 2016, the EPA took various steps to investigate WaterLegacy’s petition:
  • EPA finalized a protocol for its investigation (Mar. 8, 2016)
  • EPA conducted a broad request and review of MPCA documents pertaining to mining permits and enforcement. (beginning Apr. 4, 2016)
  • EPA requested that the Minnesota Attorney General to demonstrate that Minnesota has the authority to control sulfate pollution despite laws enacted in 2015 and 2016 to block enforcement. (Apr. 5, 2016 and May 9, 2016)

Read all filings related to WaterLegacy’s Petition for NPDES Program Withdrawal in Minnesota.

In 2016, actions by the Minnesota Legislature to prevent enforcement of the wild rice sulfate standard came under the EPA review initiated by WaterLegacy’s petition:
The Environmental Protection Agency says that the state’s refusal to enforce a decades-old pollution rule could undermine its authority to enforce the Clean Water Act in Minnesota.

Laws passed in 2015 and 2016 that exempt taconite and other industries from a pollution rule aimed at protecting wild rice may “strike down” the state’s authority to implement federal environmental laws, the EPA said.

Read “EPA presses Minnesota over laws exempting taconite firms from wild rice rules,” Star Tribune (July 18, 2016)