REGIONAL— U.S. Steel may have to clean up groundwater contaminated by the Minntac tailings basin based on a decision issued Wednesday by the Minnesota Supreme Court.
The high court sided with the state’s Pollution Control Agency, which had imposed limits on Minntac’s sulfate contamination of groundwater near the tailings facility in a permit the agency issued to Minntac in late 2018.
U.S. Steel sued and the state’s Court of Appeals had reversed the MPCA, arguing that state rules did not clearly classify groundwater as subject to pollution controls. It was a significant win for U.S. Steel at the time, but this week’s high court decision wipes that victory away.
The Supreme Court ruling, written by Justice Paul Thissen, agreed with the Court of Appeals that state rules on the question were ambiguous, since there was language that seemed to support differing interpretations of whether groundwater was subject to pollution controls as “Class 1” water. Class 1 waters are those identified for drinking and other potable uses by humans and, as a result, the MPCA had included the federal drinking water limit on sulfate, of 250 milligrams per liter, in the Minntac permit. The company would have until 2025 to meet that standard.
But given the ambiguity in the rules, the high court determined that an agency decision needs to be given a higher level of deference by the courts. In addition, the court found that the MPCA has consistently interpreted state rules to provide for protection of groundwater, and has done so for decades. “Since at least 1993, the MPCA (under a variety of administrations) has unequivocally and consistently stated in Statements of Need and Reasonableness (SONARs) that groundwater is a Class 1 water,” wrote the court. “This history makes clear that the MPCA interprets the rules to mean that all groundwater is Class 1 water and demonstrates that the MPCA has not suddenly or recently shifted its interpretation.”
Because the court found that the MPCA’s interpretation of the regulations was “reasonable” and “longstanding,” the court found that the MPCA properly exercised its authority in applying the Class 1 standard in the case of Minntac.
The decision is a victory for the Fond du Lac Band, as well as the group Water Legacy, which had argued that the drinking water standards should apply to groundwater contaminated by Minntac. “This is a huge decision for Minnesota,” said Paula Maccabee, attorney for Water Legacy. “In order to avoid controlling its own pollution, U.S. Steel put the entire structure of Minnesota’s groundwater protection at risk. Now, not only will they eventually have to deal with their own pollution, but the state’s existing structure of protection is safe.”
The high court won’t have the final word, at least not yet. While the Minnesotra Supreme Court reversed the Court of Appeals on the question, it remanded the case back to the lower court to determine whether U.S. Steel has a right to a contested case hearing on the issue or a possible variance from the rules.
The court also remanded on a second issue raised in the appeal, whether or not contaminated seepage from under the tailings basin dikes is subject to pollution controls. The Court of Appeals had determined that it was not, because the water was seeping from underground. The appellate judges concluded that the Clean Water Act only applied to surface waters, so they determined that the seepage from under the dikes was exempt.
That conclusion has since been largely overturned by a 2020 U.S. Supreme Court decision in the case of County of Maui vs. Hawaii Wildlife Fund, that found that contaminated discharge through groundwater is regulated under the Clean Water Act if it is the “functional equivalent” of a direct discharge. The Minnesota Supreme Court subsequently concluded that the Maui case was applicable to Minntac’s seepage and that the MPCA must reevaluate its decision based on the standards applied in the Maui case.
More potential delay
While the ruling may have significant long-term impacts for Minntac’s operations, the immediate effect is likely to be more delay in enforcing cleanup of one of the state’s largest sources of water pollution ,as the appellate court wades through the issues raised in the remand and determines whether U.S. Steel has a right to a contested case hearing or a variance from the new pollution standard.
U.S. Steel continues to operate its Minntac facility on a permit originally issued in 1987, which expired in 1992. The MPCA has sought for decades to get U.S. Steel to clean up the increasingly contaminated water contained within its 8,000-acre, unlined tailings basin, located north of Virginia. Yet, a combination of legal maneuvering, delay tactics, and political pressure, has rendered the MPCA’s efforts largely ineffective to date.
The new permit that the MPCA issued in 2018, which is currently stayed, would require the company to begin to treat its contaminated water. In particular, the permit requires the company to reduce the sulfate levels in the tailings basin from current concentrations of approximately 1,000 mg/l, to 800 mg/l within five years and 357 mg/l within ten years.
Further court proceedings, a possible contested case process, a potential variance request, and additional agency actions, are likely to push off any final resolution, possibly for years.
Minntac employs nearly 1,500 workers and is the largest iron ore producer in the U.S.