by Steve Timmer

Dec 10, 2019, 2:00 PM

On the court rejecting a mining company permit

On Monday, December 9th, the Minnesota Court of Appeals struck down an MPCA permit issued for Minntac’s tailings basin at Mountain Iron. We should first note that the rejected 2018 permit replaced one that expired in July of 1992. The MPCA, in other words, allowed the operation at Minntac for about 26 years without a current permit. [There were some interim understandings about some mitigation projects to be undertaken between Minntac and the MPCA, but those understanding were not subject to public scrutiny.]

This should fill you with optimism about how the MPCA would permit and monitor copper sulfide mining in Minnesota.

The link above is to the opinion in the case; for the executive summary you can go to a Star Tribune article here. The opinion, frankly, is not super accessible, so read the article first and then perhaps you’ll want to read the opinion, especially part three, which has application to the upcoming hearing in Ramsey County District Court on the water discharge permit issued to Glencore’s pet rabbit, PolyMet Mining.

In the briefest summary, the Court of Appeals asked the MPCA, Where are the WQBELs in the permit? [For the surface water discharge portion of the permit, governed by the Clean Water Act.]

Don’t need ’em, replied the MPCA.

Oh, ho, we think you do under the Clean Water Act, said the Court of Appeals. Go back and fix it.

Here’s what WQBELs are:

Water Quality-Based Effluent Limit (WQBEL)—A value determined by selecting the most stringent of the effluent limits calculated using all applicable water quality criteria (e.g., aquatic life, human health, and wildlife) for a specific point source to a specific receiving water for a given pollutant.

WQBELs seem rather fundamental to a water discharge permit issued by the Minnesota Pollution Control Agency, no?

If you have exceedance of WQBELs under a permit issued pursuant to the Clean Water Act, those pesky environmentalists can sue you, even if the regulators don’t want to, and you won’t be protected by the polluter’s friend, the permit shield.

If you are Minntac, you don’t want WQBELS for things like sulfates and heavy metals, and if your regulators are sufficiently supine, they don’t either. Does that sound like anybody you know?

Anyway, the WQBELs? Never heard of ’em approach seems to be standard operating procedure at the MPCA, because it issued the water discharge permit to PolyMet without them, too. In spite of remarks from EPA staffers that it needed them. These are the comments that were suppressed by leadership in the Minnesota Pollution Control Agency and Region 5 of the EPA.

After the decision, the MPCA spox had this to say:

MPCA spokesman Darin Broton said the agency is assessing its next steps and “will continue engaging with stakeholders to ensure the state’s groundwater and surface water are protected.”

Hahaha. What utter baloney. Minntac and US Steel, its parent, are the only stakeholders the MPCA will be talking to, not the environmental nonprofit litigants, and certainly not to you or me.

– o O o –

Update: When I was researching the MPCA’s cancellation of the TMDL study for the St. Louis River for a Community Voices op-ed at MinnPost, I read some MPCA communication discussing a special session law that was passed in 2015. In other words, it came out of one of those end-of-session log rolling marathons involving leadership of the two houses of the legislature and the governor.

The bill was referred to in the opinion of the Court of Appeals in striking down the water discharge permit issued to Minntac and cited above:

In 2011, the legislature passed a law requiring the MPCA to engage in study and adopt new wild rice water-quality standards, and to limit enforcement of the existing rule until new rules were adopted. 2011 Minn. Laws 1st Spec. Sess. ch. 2, art. 4, § 32, at 783-85. The 2011 legislation did not include a deadline for adoption of new rules. In 2015, the legislature passed a law requiring the MPCA to adopt new rules by January 15, 2018, and providing that implementation of the wild rice water quality standard in Minnesota Rules, part 7050.0224, subpart 2, shall be limited to the following, unless the permittee requests additional conditions:

(1) when issuing, modifying, or renewing national pollutant discharge elimination system (NPDES) or state disposal system (SDS) permits, the agency shall endeavor to protect wild rice, and in doing so shall be limited by the following conditions:

(i) the agency shall not require permittees to expend money for design or implementation of sulfate treatment technologies or other forms of sulfate mitigation; and

(ii) the agency may require sulfate minimization plans in permits; and

(2) the agency shall not list waters containing natural beds of wild rice as impaired for sulfate under section 303(d) of the federal Clean Water Act, United States Code, title 33, section 1313, until the rulemaking described in this paragraph takes effect.

2015 Minn. Laws 1st Spec. Sess. ch. 4, art. 4, § 136, at 2094-95. In 2017, the legislature extended the deadline for adopting new rules to January 15, 2019. 2017 Minn. Laws ch. 93, art. 2, § 149, at 742.

The MPCA did propose a new wild rice rule, but it was rejected by the Office of Administrative Hearings, so at the moment, there is no new wild rice rule.

The point I want to make is to identify legislative leadership when this 2015 clunker was passed. Go ahead. Guess who they were.

If you guessed Speaker Kurt Daudt and Majority Leader Tom Bakk, go and get yourself two cookies.

There is a fascinating story that was published at MinnPost on Monday, the same day as the Minntac decision, How turn-of-the-century lumber speculation destroyed the Bois Forte Ojibwe homeland.

That story, the efforts to weaken the wild rice rule, the present case involving Minntac, the cancellation of the TMDL study for the St. Louis River, and the issuance of a water discharge permit to PolyMet without WQBELs are all of a piece.

There is nothing new under the sun.