REGIONAL— A three-judge panel of the Minnesota Court of Appeals has overturned the Minntac tailings basin permit issued by the state’s Pollution Control Agency late last year, in the process …
REGIONAL— A three-judge panel of the Minnesota Court of Appeals has overturned the Minntac tailings basin permit issued by the state’s Pollution Control Agency late last year, in the process handing a legal victory to both environmental advocates and U.S. Steel.
The ruling, issued Monday, agreed with the Fond du Lac band and the group Water Legacy, that the MPCA had acted improperly by issuing a permit for the Minntac facility that did not include water quality-based effluent limits.
At the same time, the court rejected the MPCA’s decision to require Minntac to meet a federal drinking water standard for sulfate as it applies to groundwater underneath the company’s 8,000-acre tailings basin north of Virginia.
The court ordered that the permit be remanded back to the agency for further proceedings.
While courts are required to defer to agency decisions when those decisions are based on reasonable evidence, the three-judge panel found that the MPCA’s decision making lacked a firm grounding in facts.
“Rather, it seems to have simply ignored or overlooked evidence in the record that could suggest a contrary conclusion,” stated Judge Jeanne Cochran, who wrote the opinion. Cochran was referring to a decision by the MPCA not to require effluent limits in its Minntac permit for discharges from the company’s tailings basin into both the Sand and Dark rivers. The MPCA and U.S. Steel had argued that those limits were unnecessary since Minntac had already eliminated discharges from the Sand River through the installation of a seepage collection system and would eventually be eliminating discharges into the Dark River through a similar system.
While the MPCA and U.S. Steel had cited evidence showing that discharges from one outlet into the Sand River had been halted, the court cited substantial other evidence that suggested that the tailings facility continues to discharge into the Sand River from other points along the tailings basin dam. The Sand River is a tributary to the Pike River and ultimately to Lake Vermilion. “On this record, we can only conclude that the MPCA has failed to take the requisite “hard look” at the issue of whether water quality-based effluent limits are required in the [water discharge] permit, and, accordingly, we must intervene.”
Water Legacy attorney Paula Maccabee called the ruling an important step forward. “This tailings basin has been contaminating the surface water for decades,” she said. “This decision is the first time that U.S. Steel may actually be required to clean up their pollution. That’s a really important change.”
At the same time, the court rejected a claim by environmental groups that groundwater contaminated by the tailings basin should be subject to the same standards as surface water if they are “hydrologically-connected.” The question of whether groundwater is subject to the provisions of the Clean Water Act has been a controversial one in the courts for decades and a landmark case out of Hawaii, which the U.S. Supreme Court heard last month, is expected to clarify that issue sometime next year. For now, it appeared the Minnesota appellate judges were content to err on the side of caution and determined that the federal clean water law does not apply to groundwater.
At the same time, the court found that the MPCA erred when it required U.S. Steel to comply with a 250 milligram per liter federal drinking water standard for sulfate. While such rules do apply in state rules to surface water, the court found that groundwater is governed by a separate set of state rules and that the federal standard does not apply and was therefore applied by the MPCA in error. That decision was a clear victory for U.S. Steel.
On the separate issue of the wild rice standard, the court determined that the question was not yet ripe since the court was remanding the lack of effluent limits back to the MPCA for further deliberations. But the court signaled that the wild rice standard would likely be applied should the MPCA ultimately opt to enforce water quality standards on Minntac. “…if the MPCA determines that [effluent limits] are required on remand, it would seem to follow that the MPCA would apply the wild rice rule in determining conditions for the [water discharge] portion of the permit,” wrote the judges.
MPCA spokesperson Darin Broton said the agency is continuing to review the court’s decision and had not yet determined its next steps. “The Minnesota Pollution Control Agency is dedicated to protecting Minnesota’s most valuable resource – its water,” he stated. “While the agency continues to review today’s appeal court’s decision and assess its next steps, the MPCA will continue engaging with stakeholders to ensure the state’s groundwater and surface water are protected.”
Environmental groups aren’t convinced of that.
“The mining industry takes advantage of unclear standards and loopholes to gut our ability to protect Minnesota’s water,” said Aaron Klemz with the Minnesota Center for Environmental Advocacy. “With even more dangerous sulfide mines proposed for Minnesota, today’s decision shows the Minnesota Pollution Control Agency either cannot or will not effectively protect Minnesotans from mining pollution.”
The MCEA had filed suit against the MPCA back in 2017 over the agency’s failure to propose a new permit for the Minntac facility. At the time, the company was operating with a water discharge permit that had expired 25 years ago. The MPCA responded to the MCEA lawsuit by issuing a permit within a matter of days, and it’s that permit that the MPCA will now have to take up once again after the court’s reversal and remand.
Any of the parties in the case have 30 days to request review from the state’s Supreme Court.