REGIONAL— The U.S. Steel Corporation is seeking to intervene in a pair of lawsuits that challenge the company’s new permit for water discharge from the Minntac tailings basin north of Virginia.

As the Timberjay reported last week, that permit is being appealed by the group Water Legacy, which contends the permit issued by the state’s Pollution Control Agency last month is a violation of the federal Clean Water Act.

U.S. Steel, given the impact the twin lawsuits could have on the company’s operations, is likely to be granted the right to intervene in the case, and will likely do so on the side of its regulator, the MPCA. “They have a right to do so, and we don’t intend to challenge it,” said Paula Maccabee, legal counsel for Water Legacy.

The second lawsuit, filed Dec. 31 by the Fond du Lac Band of Ojibwe, argues similarly to the case filed by Water Legacy, contending that the provisions of the newly-issued Minntac permit fail to comply with federal laws and rules.

As with Water Legacy, the tribe takes particular issue with the MPCA’s decision not to classify Minntac’s tailings basin as a point source of pollution. “Therefore, the MPCA reasoned, it need not include in the permit certain adjacent, impacted surface waters or groundwater because they would only be considered “receiving waters” if the tailings basin were a ‘point source,’” writes the band’s attorney in its legal filing. The tribe notes that the MPCA’s proposed classification was rejected by the Environmental Protection Agency in 2016, although the EPA under the Trump administration offered no comment whatsoever on the MPCA’s proposed permit when it went to public comment earlier in 2018. In the 2016 comments on the proposed permit, the EPA argued that the tailings basin is “a point source which, according to MPCA’s own documentation, is discharging pollutants to nearby surface waters in the Sand and Dark River watersheds.”

According to the EPA, the basin’s various seeps and discharge points were discharging a combined 4.3 million gallons of polluted water into the two river systems. The Sand River is a tributary of the Pike River, which flows into Lake Vermilion.

The tribe also contends that the MPCA is misrepresenting data in claiming that discharges into the Sand River have been halted by the construction of a pump-back system at the discharge point located there. “The uncontested facts confirm ongoing flow of over 1,000 gpm at this site, and that sulfate load is thereby being added to the Sand River,” notes the band in their legal filing. “There is no justification for eliminating this monitoring site, nor for ignoring the data already collected there, much less for omitting the Sand River as a “receiving water.””

Fond du Lac is also contesting the MPCA’s decision not to enforce the state’s 10 milligram-per-liter sulfate standard, which has been a part of state water quality rules since the 1970s in order to protect wild rice. The MPCA justified its decision to ignore the federally-approved standard by citing a 2015 law passed by the Legislature, but the Fond du Lac filing argues that the law does not prohibit the agency from enforcing the law, but only prohibits it from requiring companies to expend funds to reduce sulfate discharges. In the end, the band argues that the law, as it is being implemented by the MPCA, is itself a violation of federal law and must be overturned by the court. Water Legacy has made a similar argument and the case is likely to test the constitutionality of the Legislature’s 2015 decision to bow to the demands of the state’s mining industry over the issue of sulfate discharges.

The two challenges to the MPCA’s discharge permit will be heard by the state’s Court of Appeals, where the two cases are likely to be combined.

Minntac is the state’s largest taconite mine and processing plant and employs about 1,800 workers. Its massive tailings basin contains billions of gallons of water that is known to contain high concentrations of sulfate, total suspended solids, bicarbonates, and other pollutants. Critics contend that discharges from the basin have decimated once-abundant wild rice crops in some receiving waters, including Sandy and Little Sandy lakes, as well as the Dark and Sand rivers.