The vast unlined tailings basin has been leaking polluted water for decades.”

Sara Van Norman

REGIONAL— The continued seepage of highly-contaminated water from the Minntac tailings basin into a tributary of the Pike River proved a main topic of oral arguments last month as a three-judge panel of the Minnesota Court of Appeals heard from lawyers for U.S. Steel, environmental groups, the Fond du Lac Band, and the state’s Pollution Control Agency over the future of a newly-issued wastewater discharge permit for the massive taconite mining operation.

The court is expected to decide, later this year, whether to throw out the NPDES permit that the MPCA issued to U.S. Steel last December. Both U.S. Steel and environmental groups want the permit tossed, albeit for different reasons, and sent back to the MPCA for further deliberation.

The issues raised during more than an hour and a half of back and forth legal argument were varied and often technical, but the judges signaled they’re sympathetic to the case laid out by Water Legacy and the Fond du Lac Band. Water Legacy attorney Paula Maccabee and Fond du Lac’s lawyer, Sara Van Norman, argued that Minntac’s new permit violates state law and the Clean Water Act for its failure to address water quality violations stemming from sub-surface seepage affecting the Sand River. The Sand River is a tributary of the Pike River, which flows into Lake Vermilion.

The water that seeps from the 8,000-acre three-story high tailings pile is high in sulfate, specific conductance, bicarbonates, and hardness, according to test data and attorney Van Norman argued it has devastated a formerly abundant wild rice crop that grew in two lakes, known the Twin Lakes, located about a mile downstream of the tailings pile.

“The vast unlined tailings basin has been leaking polluted water for decades,” said Van Norman during the oral arguments. “That is not in dispute. The MPCA has failed to act.”

Attorney for the MPCA, Stacey Person, challenged that, noting that the agency had required U.S. Steel several years ago to install a seepage collection and return system, or SCRS, to halt the flow of contaminated surface water from the tailings into the Sand River. The MPCA cited the existence of that system, which was designed to serve as a catch basin, as justifying their decision not to impose water quality standards or testing requirements on discharges on that end of the tailings pile. Person argued that the new permit expressly prohibits seepage from the SCRS.

But Van Norman and Maccabee pushed back, noting that the metal sheet lining installed to contain seepage on the east side of the tailings pile only extends 15 feet into the ground and still allows significant amounts of water to seep underneath and into adjacent surface waters. They cited studies by both the Environmental Protection Agency and the Great Lakes Indian Fish and Wildlife Commission that indicated that contamination levels are virtually identical in water found on either side of the metal lining that is supposed to contain seepage, suggesting a direction connection between the waters. “Water is flowing under, over, and around these catch basin walls and some of it never reports to the catch basin,” Van Norman told the judges.

Attorney Person argued that the MPCA is only required to regulate discharges to surface water, questioned whether contaminated water was seeping under the liner and, even if it was, whether it would be subject to regulation as surface water.

But the judges expressed their doubts and questioned the basis for the MPCA’s position. “If there isn’t substantial evidence that the SCRS is working adequately, there would seem to be an arbitrary decision not supported by substantial evidence,” said the panel’s presiding judge Jeanne Cochrane. A second judge zeroed in on the point as well. “Where is it in the record, that supports what the MPCA is saying regarding surface water seepage. I think that is critical for our decision.”

MPCA’s Person said she would try to provide citations but was unable to do so during her allotted time to speak.

The second judge weighed in again. “The question is whether the explanations you have provided are arbitrary and capricious based on whether they are supported by the factual record and I think as to the surface water, that is the question that Judge Cochrane has nailed on the head. Speaking for myself, and not the panel, I have my doubts.”

U.S. Steel attorney Jeremy Greenhouse argued that the MPCA was not allowed to enforce the state’s strict sulfate standard on any discharge from the tailings pile because the Legislature had prohibited it from doing so. It’s unclear, however, how that argument might play into the judges’ decision.

Legal standard

While courts generally defer to agency decisions, they can and will overrule agency officials if their decisions are deemed “arbitrary and capricious” and not based on sufficient evidence. In this case, if the judges determine that there is inadequate evidence to support the MPCA’s position that the SCRS has resolved all of the seepage on the east side of the tailings pile, they could well rule that the MPCA failed to issue a permit that is in compliance with state and federal water quality requirements. Such a decision could overturn the permit and send the matter to the MPCA to either produce additional evidence to support its decision, or to revise the permit to require compliance with water quality standards downstream of the SCRS.

The court has until Dec. 9 to issue its ruling.