When state and federal governments both fail to enforce regulations, the Federal Clean Water Act (Section 505) allows citizens to sue for compliance. The law allows up to $37,500 per day per violation. Before such a suit can be taken to court the citizens must give a 60-day notice regarding their “intent to sue” to the industry and to the Minnesota Pollution Control Agency (MPCA). This allows the industry and the MPCA a last chance to come into compliance.

In January 2010, The Center for Biological Diversity, together with the Save Lake Superior Association and the Indigenous Environmental Network, filed a notice of “intent to sue” demanding that Cliffs Erie clean up its LTV and Dunka sites before any sulfide mining proposals could be considered, particularly PolyMet’s NorthMet Project at the seriously contaminated LTV site. The lawsuit covered only violations accrued since 2005. There is a five-year statute of limitations.

As we know, in February, the Draft Environmental Impact Statement (DEIS) for the NorthMet Project received the lowest rating possible from the U.S. Environmental Protection Agency (EPA), citing water quality impacts.

Then on March 25, the MPCA entered into a consent decree with Cliffs Erie, shielding the company from the intended lawsuit. It was a ludicrous settlement for excessive violations of Minnesota water standards that the company and agencies ignored for years.

Biological Diversity’s “intent to sue” listed 309 violations of the permit limits. Multiplying just the 309 violations by the maximum fine allowed, $37,500 per violation per day, the total maximum penalty – had Cliffs been subjected to fines – would be approximately $12 million. If the calculations also included additional amounts for many of those violations that are monthly, thus multiplied by 30, the total maximum penalty would be off the charts. For example, one violation at $37,500 per day for 30 days would be an additional maximum penalty of $1,125,000 added to the $12 million total.

It’s impossible to fathom why the MPCA fined Cliffs Erie a paltry $58,000!

Consent decree or consent to pollute? The longer a company can delay fixing problems, avoiding the cost involved, the more money it has available for production or increased profits. This delay also lowers the cost of operations for the company, enabling it to undercut competitors who have spent money on regulatory compliance.

Our waters then pay the price for company profits.

The EPA determines such “avoided costs” using a computer program called BEN. Developed by accountants and economists, BEN calculates avoided costs in permit violations. The “economic benefit of noncompliance” penalty has been upheld by federal administrative law judges.

The MPCA is avoiding “avoided costs” in its penalty determinations.

This is not the first time a citizens group has attempted to clean up the Dunka mine site. On February 28, 1990, the Minnesota Sportfishing Congress gave notice of the “intent to sue” under the Clean Water Act for permit violations at Dunka. LTV was in the process of bankruptcy proceedings and the stay was not lifted to allow the lawsuit to proceed.

The Minnesota Sportfishing Congress’s “intent to sue” listed 106 violations of “effluent standard or limitation” at $25,000 per violation (the maximum violation in 1990). Again many, if not most, of the violations were monthly and thus multiplied by 30.

The 1990 “intent to sue” also stated that: “Part II (A) (1) (c) of the Permit requires written notification of the MPCA in the form of a written report on the Discharge Monitoring Report describing and explaining any non-compliance. The records show that no reports for any of the above violations were submitted.”

A 1989 MPCA draft memorandum had been written with a “strong recommendation” that Dunka be placed on the EPA’s 304 (L) lists (toxic discharges). Apparently, it was not done.

Why is it left up to concerned citizens to demand protection of our priceless natural resource, our water? Many agency men and women try to do their jobs; it is difficult when they have been told that industry is their “client”.

Now Duluth Metals (Antofagasta) has an exclusive option agreement to purchase the leaching Dunka mine site, intending to use it as a depository for millions of tons of waste rock and tailings from massive proposed sulfide mining operations. Current acquisitions of Duluth Metals also include ownership of 1,400 acres in the Kawishiwi Triangle, with many more acres a possibility.

We need to speak up in defense of what defines us: our waters. It is time for “prove it first” legislation. Wisconsin has such legislation. Are our waters worth less?