WaterLegacy Petition to U.S. EPA: Minnesota Failure to Control Pollution

On July 2, 2015, WaterLegacy filed a petition under federal Clean Water Act regulations asking the U.S. Environmental Protection Agency (EPA) to remove the Minnesota Pollution Control Agency’s (MPCA) authority to regulate mining pollution. The EPA has the authority to remove a State’s delegated authority to regulate water pollution if a State fails to comply with the Clean Water Act and its implementing regulations.

The WaterLegacy Petition reveals how the MPCA has failed for years in its responsibilities to administer the National Pollutant Discharge Elimination System (NPDES) program in accordance with the Clean Water Act and federal EPA regulations.  In addition, laws passed by the Minnesota Legislature in 2015 interfere with MPCA’s compliance with the Clean Water Act to control sulfate pollution in wild rice waters, providing additional legal grounds for withdrawal of Minnesota’s water pollution authority.

Mining companies in Minnesota “are routinely contributing pollutants, including sulfate, bicarbonates, dissolved salts, specific conductivity and metals, such as copper, nickel and mercury to both immediate and downstream receiving waters,” reveals the petition. Yet despite the MPCA’s Metallic Mining Joint Priority Agreement with the EPA in 2013 to reissue up-to-date permits and regulate mining pollution, the petition charges “MPCA has made virtually no progress in addressing the backlog of out-of-date mining permits,” thus allowing mine pits, waste rock piles and tailings waste facilities to continue polluting Minnesota waters. The petition also lays out evidence that mining companies and their lobbyists have exerted “widespread and pervasive” influence to prevent the State from living up to its responsibilities to protect clean water and Minnesota citizens from mining pollution.

READ the WaterLegacy Petition for Withdrawal of Program Delegation from the State of Minnesota for NPDES Permits Related to Mining Facilities, July 2, 2015

READ M. Helmberger, “Group asks EPA to regulate state’s mining industry” (July 8, 2015) in Northern Minnesota’s Timberjay

“The petition, which includes hundreds of pages of exhibits gathered by the organization through public information requests, reveals that mining companies on the Iron Range are routinely exceeding pollution standards for pollutants like sulfates, bicarbonates, dissolved salts, specific conductivity, and metals, such as copper, nickel and mercury to both immediate and downstream receiving waters. It also cites data showing that water bodies, like the St. Louis and Embarrass rivers, have seen significant declines in the numbers and diversity of aquatic organisms, including fish, as a result of mining discharges.”

READ M. Helmberger, “Regulating mining” (July 8, 2015) in Northern Minnesota’s Timberjay

“What Water Legacy’s petition lays bare is a case of the industry setting its own rules, essentially regulating the actions of Minnesota state government, rather than the other way around. Minnesota’s reputation for strong environmental laws is a paper tiger.”

READ R. Meador, “Citing MPCA weakness, group asks feds tostep in on mining’s water pollution,” MinnPost (July 15, 2015)

“What I really wanted to hear was MPCA’s defense, if any, to Maccabee’s claims regarding the backlog of expired permits. . . By April 2013, the agencies had negotiated an agreement that required the MPCA to reduce the permits backlog by 20 percent per year until it was eliminated by July 1, 2018. But based on a public-records check, MPCA has made “virtually no progress” on keeping that commitment.”

EPA Responds to WaterLegacy Petition, agrees to Investigate Minnesota’s Failure to Control Mining Pollution (2016)

The federal Environmental Protection Agency agreed to investigate the Minnesota Pollution Control Agency’s failure to enforce the Clean Water Act and control mining pollution.

While such investigations are not uncommon, “this the first time ever for this kind of an investigation in Minnesota,” said Paula Maccabee, legal counsel for the St. Paul-based WaterLegacy, which filed a petition last summer requesting the investigation. Maccabee said she is pleased that the EPA is taking WaterLegacy’s petition seriously. “I had thought that the EPA’s Draft Protocol, which we received at the end of December was pretty strong. This final version is even stronger.” (from EPA opens investigation of state’s mining regulation by the Timberjay)

Through 2016, the EPA took various steps to investigate WaterLegacy’s petition:

  • The EPA finalized a protocol for their investigation (March 8, 2016)
  • The EPA conducted a broad request and review of MPCA documents pertaining to mining permits and enforcement. (Beginning April 4, 2016)
  • The EPA requested the Minnesota Attorney General to demonstrate that Minnesota has the authority to control sulfate pollution despite laws enacted in 2015 and 2016 to block enforcement. (Apr. 5, 2016 and May 9, 2016)

READ all filings related to WaterLegacy’s Petition for NPDES Program Withdrawal in Minnesota, including the original Petition, EPA documents and WaterLegacy’s supplemental letters on the EPA’s dedicated web page