REGIONAL— Is the Minnesota Legislature putting the state at risk of losing its authority to regulate major industries under the federal Clean Water Act? That’s a question that could well be answered by a legal analysis that Minnesota Attorney General Lori Swanson will need to provide to the federal Environmental Protection Agency by July 1.

The EPA is in the midst of an investigation into allegations by attorney Paula Maccabee, of the group Water Legacy, charging that the Minnesota Pollution Control Agency has failed to enforce water pollution standards on the state’s taconite mining industry, for years. Among the allegations raised by Maccabee is that the state Legislature has, at least in some cases, stripped the MPCA of its authority to regulate some discharges from taconite plants.

Even as that investigation continues, the state Legislature has taken steps twice in the past two years that seemed aimed at doing just that, by prohibiting the agency from enforcing the state’s strict wild rice standard of 10 milligrams per liter for sulfate discharges. In 2015, Iron Range legislators successfully pushed a new law through the Legislature that prohibited the MPCA from including or enforcing the wild rice standard in any new permits until the MPCA could devise a new standard. That process is expected to take at least until 2018, possibly much longer. Just last month, the Legislature approved yet another sulfate-related measure, that prohibits the MPCA from enforcing the wild rice standard that already exists in a pollution permit issued to US Steel’s Keetac facility. Both the Minnesota House and Senate passed the measure by wide margins and Gov. Mark Dayton signed the bill on May 31.

Federal officials have put the state on notice that such actions could be grounds for terminating the state’s authority to regulate under the Clean Water Act.

“Such an action by a state Legislature striking down or limiting a state’s authorities could constitute a criteria for withdrawal of a state program under [federal law],” said Tinka Hyde, director of the Water Division at the EPA’s regional office in Chicago. Hyde made her comments in an April 5 letter to Rebecca Flood, Assistant Commissioner for Water Policy at the MPCA.

According to Hyde, MPCA officials have informed the EPA that they view the 2015 law as preventing them from including necessary water pollution limits in permits where MPCA believes the wild rice standard applies. “Further, MPCA representatives have stated that they will not reissue permits where the sulfate standard may apply in light of their agency’s apparently circumscribed authority under this law,” wrote Hyde in her letter.

In order to better understand the impact of the Legislature’s actions, the EPA is requesting a legal analysis by the state’s attorney general, to determine whether or not the new laws compromise the MPCA’s ability to enforce federally-approved pollution standards. Hyde initially sought a legal analysis by May 4, but agreed to the MPCA’s request for an extension to July 1.

Maccabee said she’s surprised by the strong language in the EPA letter. “It seems to me that the EPA is becoming more and more concerned that the Legislature is depriving the MPCA of its authority to regulate under the Clean Water Act,” she said. Maccabee said she forwarded the new Keetac law to the EPA late last week and believes it will simply add to the pile of evidence she believes supports her position. “Two years in a row it seems the Legislature has passed session laws that just fly in the face of the Clean Water Act,” she added.

But that’s not how Rep. Jason Metsa, DFL-Virginia, sees it, noting that even the strongest environmental advocates in the Legislature supported the Keetac measure this session. “I think the way we approached it from the state level was very responsible,” he said. “We made sure we had good science in place and that the measure had the backing of the governor’s office. We felt we would be in compliance,” he said, and suggested that the EPA has shown flexibility with Minnesota in the past. “I think the EPA recognizes that Minnesota has always been a strong state in enforcing pollution standards and pushing the ball forward on environmental protection generally.”

Matt Swenson, spokesperson for Gov. Dayton, said the Governor was aware of the EPA investigation, but felt the legislation was reasonable. “As the Governor has stated previously, he believes the current sulfate standard is seriously outdated. Until the MPCA completes its work updating the standard, using modern science, the Governor does not believe that one company should be held to a standard that no other company is currently required to adhere to.”

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, in effect, support Maccabee’s claims and all but force the EPA to act favorably on the Water Legacy petition. If she finds that the Legislature has not restricted the MPCA’s authority, it would undercut that agency’s claims to the EPA.

Cooperative

federalism

While the Clean Water Act is a federal law, it leaves actual enforcement of the act to the states, through what’s known as “cooperative federalism.” But states must operate within the law, or the EPA retains authority to step in and manage a state’s program on its behalf. That hasn’t happened in the past, and it’s unlikely to happen in this instance, but it does give the EPA a hefty hammer to bring resistant state regulators back into compliance. In Minnesota, the MPCA had previously developed its own pollution standards. In most cases, the state’s standards were based on federal rules, but in some cases, such as with sulfate discharge, the MPCA enacted a tougher rule, in order to protect wild rice. But once the EPA approves state standards, the state is expected to enforce them, even if they are stricter in some cases than might be permitted in other states.

Sulfate discharges have become a particular target of environmentalists and tribal authorities, who contend that the discharge of high levels of sulfates from taconite mines has all but eliminated some formerly prime wild rice beds and prompted additional impacts to the aquatic environment.