REGIONAL— Officials with the Environmental Protection Agency are raising new concerns about whether the state of Minnesota is undermining federal pollution laws, potentially giving the EPA grounds …
REGIONAL— Officials with the Environmental Protection Agency are raising new concerns about whether the state of Minnesota is undermining federal pollution laws, potentially giving the EPA grounds for withdrawing the authority of the Minnesota Pollution Control Agency to administer the Clean Water Act in the state.
In two recent letters, top officials at the EPA’s regional office in Chicago appear to concur with the allegations raised one year ago in a petition by the group Water Legacy, that Minnesota lawmakers are restricting the ability of MPCA officials to do their jobs when it comes to regulating the state’s mining industry.
The EPA is in the midst of an investigation into allegations by Water Legacy attorney Paula Maccabee, charging that the MPCA has, for years, failed to enforce water pollution standards on the state’s taconite mining industry. Among the allegations raised by Maccabee is that the state Legislature has, in some cases, stripped the MPCA of its authority to regulate certain discharges from taconite plants.
Three times in the last three months, EPA officials have expressed similar concerns to MPCA officials, most recently in a June 28 letter to MPCA Assistant Commissioner Rebecca Flood. In the letter, EPA Water Division Director Tinka Hyde writes that Gov. Mark Dayton signed legislation on May 31 that “appears to invalidate water quality based effluent limits and compliance schedules for sulfate that were included in certain [water quality] permits issued by the MPCA.”
That legislation was aimed at exempting US Steel’s Keetac mine from having to comply with sulfate limits contained within the water discharge permit issued to the company by the MPCA back in 2011.
Hyde notes that Water Legacy had cited similar legislation passed in 2015 as part of their argument for a withdrawal of the MPCA’s authority over water pollution regulation. Under federal law, according to Hyde, passage of such laws “may constitute grounds for EPA’s determination that the MPCA’s legal authority no longer meets the requirements of a federally-approved program.”
While states generally have authority to administer the Clean Water Act, federal law prohibits states from passing legislation that weakens or undermines the intent of the act. In Minnesota, the EPA has previously approved water quality standards, including the state’s strict 10 milligram per liter limit for sulfates (known as the wild rice standard) and, once approved, the state is obligated to enforce those rules.
But Minnesota has failed to enforce its wild rice standard for years and only recently took steps to do so under pressure from environmental groups, Indian tribes, and the EPA. The Keetac permit represented the first attempt by the MPCA to require eventual compliance with the wild rice standard by a mining operation, but state lawmakers have now stepped in to block its enforcement, which EPA officials view as an apparent violation of federal law.
In April, the EPA had requested a legal opinion by the Minnesota Attorney General as to whether lawmakers’ actions in 2015, to block enforcement of the sulfate standard generally, constituted state interference in the enforcement of the Clean Water Act. In her June 28 letter, EPA’s Hyde is now asking the AG to weigh in on whether the 2016 legislation affecting Keetac actually strikes down previously approved permit requirements. The Attorney General will need to respond to the EPA’s request by Aug. 12.
The EPA’s request does put the Attorney General in a somewhat awkward position. If she concurs that the Legislature’s actions have effectively stripped the MPCA of its authority to enforce the Clean Water Act, as it applies to the wild rice standard, it is an admission that would support Maccabee’s claims and all but force the EPA to act. If she finds that the Legislature has not restricted the MPCA’s authority, it would undercut claims made by MPCA staff to the EPA. MPCA officials have previously told the EPA investigators that lawmakers have circumscribed their ability to enforce the sulfate standard.
Little progress on mining permits
In restricting the MPCA’s ability to enforce the wild rice standard, lawmakers have also undermined the agency’s 2013 agreement with the EPA to bring its sizable backlog of expired mining permits up to date. And that’s an issue raised most recently in a June 22 letter to the MPCA by Kevin Pierard, who heads the EPA’s water discharge permit program.
Pierard wrote that the agency is concerned by reports from MPCA representatives and the news media that the agency will not issue updated mining permits until it has completed work on development of a new wild rice standard, a process that could take years to finalize.
Pierard notes that the severe backlog of expired permits, some of which have been expired for decades, was another allegation raised in the Water Legacy petition. “EPA has also expressed this concern numerous times in the past, including in the 2013 [agreement] to address this issue. Since then, MPCA has not reissued any permits nor has MPCA public noticed a draft mining permit for reissuance,” wrote Pierard.
Pierard is giving the MPCA until July 22 to provide the EPA with an updated schedule of when it expects to issue new draft permits for approximately 20 water discharge permits for mining operations in northeastern Minnesota.
Under the agreement that the MPCA made with the EPA in 2013, the agency has until 2018 to issue updated permits for all 20 of the expired permits. That’s a commitment that the MPCA now looks unlikely to fulfill.
EPA could take steps itself
At the same time, the EPA is advancing a proposal that would allow the agency to issue updated pollution permits on its own, if state regulatory agencies fail to do so in a timely manner. That’s a regulatory change that Water Legacy’s Maccabee is strongly supporting, and she cites the MPCA’s ability to adequately regulate the mining industry as an argument for enhancing the EPA’s permit making authority.
“The EPA’s new rule would allow EPA to step in and write strong permits as problems arise, without waiting for the type of crisis that we have now in Minnesota,” wrote Maccabee in comments on the proposed change. “If regulatory deficits relate to the undue influence of a specific sector, such as the mining industry, EPA’s response and assumption of authority can be tailored to address the weakness in state regulatory practice. The proposed rules would save time and resources as well as ensuring that states comply with Clean Water Act requirements.”
The deadline for comments on the EPA’s proposed change is Aug. 2. You can submit your comments on the NPDES Application and Updates rule to Docket No. EPA-HQ-OW-2016-0145 at http://www.regulations.gov.