REGIONAL— The federal Environmental Protection Agency is proposing an in-depth investigation into allegations raised last year by an environmental organization that contends the state’s Pollution …
REGIONAL— The federal Environmental Protection Agency is proposing an in-depth 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 the results of the investigation, which the agency plans to undertake this year, 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. MPCA officials say the investigation outline is “a procedural status report” and is not newsworthy.
But Paula Maccabee, the attorney for the group Water Legacy, which filed the report, sees it differently. “This the first time ever for this kind of an investigation in Minnesota,” said Maccabee. “This goes far beyond the routine oversight normally done by the EPA. The fact that the EPA has responded so promptly and so rigorously demonstrates that they are taking the state’s failure to regulate mining waste very seriously.”
The investigation stems from a detailed petition filed by Maccabee last summer. The 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 and even sought to erode the validity of scientific work being undertaken by the agency.
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.
In its proposed action plan, dated Dec. 30, the EPA outlines its plans to investigate what it sees as three broad allegations submitted by Water Legacy, 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.
Within each broad allegation are a number of separate charges, each of which the EPA plans to investigate. According to their proposal, they plan to visit both the St. Paul and Duluth offices of the MPCA to assess the degree to which problems cited by Water Legacy are supported by evidence.
Maccabee said she’s pleased with the EPA’s proposal and sees it as appropriate given the level of concern. 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 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.
While a 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 realize that the EPA is serious, they change.”
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.
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.
The EPA investigation comes as state regulators are weighing a decision on whether to begin the permitting process for the state’s first copper-nickel mine. PolyMet Mining proposes to mine sulfide ores near Babbitt, representing a type of mining known to carry with it a greater risk of water pollution than iron ore mining, which is the metal traditionally mined in northeastern Minnesota.