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Serving Northern St. Louis County, Minnesota

Bill to block sulfate enforcement approved

Measure would eliminate Keetac’s need to comply with wild rice standard in 2011 permit

Marshall Helmberger
Posted 5/26/16

REGIONAL— The Legislature has approved a bill that would prohibit the Minnesota Pollution Control Agency from enforcing sulfate standards included in a mining permit issued to US Steel in 2011. The …

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Bill to block sulfate enforcement approved

Measure would eliminate Keetac’s need to comply with wild rice standard in 2011 permit

Posted

REGIONAL— The Legislature has approved a bill that would prohibit the Minnesota Pollution Control Agency from enforcing sulfate standards included in a mining permit issued to US Steel in 2011. The measure now heads to Gov. Mark Dayton for his signature.

Environmental groups have sharply criticized the measure, suggesting the Legislature’s action violates federal law. It comes at a time when the MPCA is under investigation by the federal Environmental Protection Agency over a number of allegations, including that the Legislature has interfered in the MPCA’s attempts to enforce the Clean Water Act as it applies to the state’s metallic mining industry.

“I don’t understand the wisdom of challenging the enforcement of this standard in the middle of an investigation,” said Paula Maccabee, legal counsel for the St. Paul-based group Water Legacy. Maccabee’s petition to the EPA last summer prompted the federal investigation.

The MPCA issued the permit in question to US Steel when the company expanded operations at its Keetac plant in 2011. The permit requires Keetac to eventually reduce its sulfate discharges to 14 milligrams per liter. If signed into law by the governor, however, that requirement will disappear, at least for the foreseeable future.

Iron Range legislators pushed the legislation, arguing that it wasn’t fair that only one taconite plant on the Iron Range was being forced to move towards compliance with the standard. Every other taconite plant on the Iron Range currently operates on expired permits that do not include limits on sulfate discharges.

The MPCA had planned to enforce the standard in a new draft permit it had planned to release for Minntac’s tailings basin in March 2015, but Iron Range legislators successfully blocked the issuance of the draft permit. Iron Range legislators subsequently pressured Gov. Mark Dayton and top MPCA officials to adopt a new, more flexible sulfate standard. That standard is currently in the rulemaking process, and the Legislature has prohibited the MPCA from enforcing the existing standard until a new one is finalized.

While state senators initially rejected the sulfate exemption bill for Keetac, authored by Sen. David Tomassoni, DFL-Chisholm, they reluctantly changed their minds, said Sen. John Marty, DFL-Roseville, a strong environmental protection advocate who eventually supported the measure. Marty said that given the fact that the sulfate standard was being revised, it didn’t make much sense to enforce the existing standard on a single taconite mine. “A lot of us were kind of torn,” he said. “But this was putting Keetac on the same footing as everyone else.”

While that might be seen as a matter of fairness, Maccabee views it more as a race to the bottom. “It seems really clear that the MPCA and the Legislature have grown comfortable denying enforcement of the Clean Water Act,” she said.

Former state Sen. Steve Morse, who now heads the Minnesota Environmental Partnership, agreed. “The state Legislature cannot simply exempt facilities from the Clean Water Act,” he stated in a May 12 letter to legislators opposing the bill. While the EPA ultimately enforces the federal Clean Water Act, it does so largely through state agencies, such as the MPCA. “The wild rice sulfate standard has been approved by the EPA,” notes Morse, “and the state must enforce it.”

Taconite mines are significant dischargers of sulfates into nearby surface water lakes and streams, with sulfate concentrations frequently between 500-1000 mg/l. The 2011 Keetac permit was the first mining permit in the state to require eventual compliance by a taconite plant with the wild rice standard, a strict sulfate standard unique to Minnesota that is designed to protect native wild rice. The MPCA and the companies have worked for decades on ways to reduce sulfate discharges, with only limited success.

In the environment, sulfates are frequently converted to sulfides, which are toxic to wild rice, even at relatively low levels, according to research conducted by the MPCA. A number of studies have also linked sulfates and sulfides to an increase in the toxic form of mercury in aquatic environments. “Wild rice is kind of the canary in the coal mine,” said Sen. Marty. “This also links to the mercury issue and that fact that a higher percentage of babies in northeastern Minnesota are born with higher mercury levels.”

New standard could take time to finalize

While the MPCA says it expects it could have a draft sulfate rule out sometime in 2017, Maccabee is far less optimistic. “I think the chance that this new rule will be in place any time soon and not legally challenged is minimal,” she said. “Either side could sue over it.”

In effect, said Maccabee, delay becomes an effective means of avoiding compliance with the Clean Water Act, and she cites the metallic mining industry in Minnesota as a classic example.

While the Minnesota Legislature adopted the wild rice sulfate standard in 1973, the MPCA never enforced it. Then, under pressure from environmentalists, tribal authorities, and the EPA, the MPCA took its first steps towards enforcement in 2011 in the Keetac permit. That prompted the Legislature to require the agency to conduct a study to see if the standard was actually warranted. When researchers hired by the MPCA determined that the standard was justified, Iron Range legislators pushed for another look and eventually convinced the MPCA to propose a flexible standard, which is now in the rulemaking process. But, notes Maccabee, it could be years before a final standard is actually in place, and years more before the MPCA is likely to finalize new permits for Iron Range taconite plants. And those permits will likely give the mines additional years, known as a schedule of compliance, to actually meet the new standard.

“This whole situation is an invitation that anytime an industry doesn’t like a rule, they shouldn’t comply and ask the Legislature to study a change and drag the process out for years,” said Maccabee. “That’s very contrary to the law.”