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Serving Northern St. Louis County, Minnesota

EPA opens investigation of state’s mining regulation

Marshall Helmberger
Posted 3/23/16

REGIONAL— The federal Environmental Protection Agency has begun a several months-long investigation into allegations raised last year by an environmental organization that contends the state’s …

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EPA opens investigation of state’s mining regulation


REGIONAL— The federal Environmental Protection Agency has begun a several months-long investigation into allegations raised last year by an environmental organization that contends the state’s Pollution Control Agency is failing to properly regulate the state’s metallic mining industry.

Depending on their findings, the EPA would have the authority to strip the MPCA of its current powers to regulate industries in the state under the Clean Water Act, although that’s an action that the EPA has never taken before, according to Josh Singer, information officer for the EPA’s regional office in Chicago.

“As with all ongoing investigations we will not comment on or discuss this investigation until it is complete,” said MPCA Assistant Commissioner Rebecca Flood.

While an EPA takeover of MPCA authority appears unlikely, the stakes are still high for the MPCA, which has been under fire from environmentalists, tribal authorities, and even the EPA, for a number of years over its failure to deal with scores of expired permits affecting the state’s metallic mining industry.

The final investigation action plan, developed by EPA officials, makes it clear that they view the inquiry seriously and that the federal agency could take steps to strip the MPCA of its authority even before a final report is drafted. “EPA may determine at any time, irrespective of the planned course of the informal investigatory process, whether sufficient information exists to order the commencement of proceedings pursuant to 40 CFR 123.64(b),” states the action plan.

Under the federal statute cited by the EPA, the agency has the authority to withdraw state programs that fail to properly regulate industries. If the EPA administrator makes such a determination, he or she would set a time and place for a hearing before an administrative law judge who would take testimony and weigh evidence on whether sufficient grounds exist to strip a state’s authority.

While the investigation is largely focused in the mining industry, any move by the EPA to assume authority for water pollution regulation in Minnesota would affect the entire state and every industry whose water discharges are currently regulated by the MPCA.

Among the issues the EPA will consider is whether sufficient information exists to:

‰ Demonstrate that the MPCA lacks the capacity to provide an effective water quality regulatory program.

‰ Indicate that the state’s current laws and regulations are contrary to the Clean Water Act or federal implementing regulations.

‰ Indicate that the MPCA, through policy or practice, is implementing the water quality program in a manner inconsistent with federal regulations.

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 Water Legacy, which filed a petition last summer requesting the investigation. Maccabee said she is pleased that the EPA is taking Water Legacy’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,” she said.

Maccabee’s petition, accompanied by hundreds of pages of legal briefs and supporting documents, comprised a multi-count indictment of what the group sees as the MPCA’s failure to regulate water pollution from the iron mining industry. It also highlights what the group sees as the mining industry’s undue influence over the Minnesota Legislature, citing recent instances where the Legislature, led by members of the Iron Range delegation, blocked the MPCA from enforcing provisions of the Clean Water Act.

MPCA officials say that their actions are regularly under review by the EPA and that they will fully cooperate in any review of the allegations raised by Water Legacy. “We will say that we are confident in our permitting and regulatory work to protect air, water, land and human health in Minnesota,” said Assistant Commissioner Rebecca Flood last summer when the petition was first filed.

While the petition cited many detailed allegations, EPA officials are investigating three primary categories of possible violations, including:

‰ That the MPCA has failed to provide an adequate regulatory program for metallic mining facilities.

‰ That the Minnesota Legislature has deprived the MPCA of the legal authority necessary to implement the Clean Water Act.

‰ That mining interests unduly influence the state of Minnesota in the setting and enforcement of the state’s water quality standards.

The EPA’s investigation comes in the wake of other steps by the federal agency to prompt the state to clean up its substantial backlog of expired mining permits. In 2013, the MPCA, under pressure from EPA, signed a Metallic Mining Joint Priority Agreement that required the MPCA to begin to clear up its backlog of over 50 expired mining company permits by 2018. As part of that agreement, the agency promised to complete a new permit for Minntac’s massive tailings basin, north of Virginia, by the end of 2014. The agency had made progress towards that goal and had planned to issue a draft permit as of March 2015 that would have eventually required Minntac to comply with the state’s current sulfate rule and other water quality standards. But the agency pulled the draft document under intense pressure from Iron Range legislators and the mining industry. Shortly after, the agency announced a so-called “flexible standard” for regulating sulfate discharges. During last year’s legislative session, a coalition of conservative Republicans and Iron Range DFLers passed a bill that prevented the MPCA from enforcing the state’s current sulfate standard until it has completed a rule-making process, which is not expected to be completed until at least mid-2017.

Meanwhile, none of the other expired mining permits has been updated either, according to Maccabee. EPA’s Singer largely concurred. “EPA has monitored actions against this joint priority but little progress has been made to date,” he said.

Timing a problem for PolyMet

The timing of the investigation comes as the state has completed environmental review on PolyMet Mining’s proposed NorthMet Mine, near Hoyt Lakes. The EPA had no real authority in that review process, but it will have decision-making power during the permitting phase, given that the EPA has veto authority over the Section 404 wetlands permit that PolyMet will need from the Army Corps of Engineers.

Maccabee said she thinks the federal agency will likely consider the ongoing problems with oversight of the iron mining industry as it weighs whether it has confidence in the MPCA’s ability to adequately regulate an industry known to pose a higher risk to water quality than iron mining.

“Minnesota may see more EPA scrutiny and less deference to state regulators with respect to the PolyMet project, existing mine discharge, rulemaking on wild rice and, possibly, even with respect to rulemaking to set standards for variances and antidegradation,” said Maccabee.  “Looks like the playing field could be leveling out a bit.”

While an actual federal takeover of pollution regulation in Minnesota would appear unlikely, the EPA’s authority does give it considerable leverage with state regulators. “No state wants to lose that much control,” said Maccabee, referring to a possible federal assumption of regulatory authority. “Usually when a state realizes that the EPA is serious, they change.”

And that’s the point, said Singer, who notes the federal authority provides “a basis for greater federal and state coordination in addressing program discrepancies and ensuring state programs are consistent with federal regulations.”

Under the rules, enforcement of the Clean Water Act is a federal-state partnership, part of a system of governance in the U.S. known as “cooperative-federalism.” States, with only a few exceptions, generally do the enforcement, with EPA serving an oversight role. But the EPA does maintain the authority to step in if a state fails to live up to its obligations under federal law, which is what Water Legacy is alleging in this case. Maccabee said state officials are often heavily influenced by major industries and that the involvement of the EPA can provide countervailing pressure that encourages state pollution regulators to take their jobs seriously. “Should EPA determine that the state’s program does not meet federal requirements, EPA will work with the state to take corrective and any other necessary actions under the law,” said Singer.

The prospect of a federal assumption of regulatory authority under the Clean Water Act in Minnesota would be daunting for regulated businesses in the state. While Water Legacy’s petition asks EPA to assume authority to regulate the metallic mining industry, EPA’s response notes that any federal assumption of authority would eliminate the MPCA’s authority for issuing any water discharge permits under the National Pollution Discharge Elimination System (or NPDES) program, including for businesses unrelated to mining.

Maccabee said that prospect should give state officials the incentive to address the backlog of expired permits and to allow the MPCA to do its job, as required by federal law.