Supreme Court backs band on groundwater

The Minnesota Supreme Court ruled earlier this month that the Minnesota Pollution Control Agency was justified in arguing that pollution seeping into groundwater from the Minntac mine tailing basin in Mountain Iron has harmed federally protected waters.

The court sided with the Fond du Lac Band of Lake Superior Chippewa, which appealed a 2019 court of appeals decision that said the MPCA failed in interpreting water rules in a 2018 permit for the U.S. Steel iron ore mine and pellet plant.

The appeals court ruled that the MPCA couldn’t use stricter standards when it issued the permit. The band, along with state regulators, argued that the state is allowed to limit sulfate pollution into groundwater — not just surface water — under the federal Clean Water Act.

“In U.S. Steel’s zeal to prevent any regulation of its own pollution, the company had put all of Minnesota’s regulation of groundwater at risk,” said Paula Maccabee in a statement from the environmental group WaterLegacy, which appealed the case along with the MPCA and the Fond du Lac Band.

“This is a victory in our long fight to protect not just wild rice waters but clean drinking water for everyone in the state,” the band said in a press release issued from the Reservation Business Committee in Cloquet.

The band said the taconite operation has polluted surrounding waters for decades, including wild rice waters on the western border of the 1854 ceded territory, where the band holds rights to hunt, fish and gather.

The crux of the court fight dealt with applying surface water permit restrictions to groundwater as well.

U.S. Steel estimates that roughly 2,000 gallons of wastewater, with sulfates as the primary pollutant, seeps every minute from its 13-square-mile waste basin directly into the groundwater.

U.S. Steel argued that the MPCA did not have authority to impose a sulfate standard in the 2018 permit because the federal Environmental Protection Agency’s secondary drinking water standards apply only to bodies of water classified as “Class 1 waters” and groundwater is not classified as Class 1.

The Supreme Court found that “groundwater is a Class 1 water under Minnesota law,” meaning it has to be protected.

U.S. Steel had sought a variance from the groundwater quality standards. The MPCA is still reworking the Minntac water quality permit.

Fond du Lac chairman Kevin Dupuis was “gratified” with the Supreme Court decision. “We will keep pushing the state and others to follow the law and to respect our treaty rights for as long as it takes,” he said. “Clean water is non-negotiable.”

Constant concern

When issuing the original permit for the Minntac basin in 1987, court records state, the Minnesota Pollution Control Agency expressed concern about the discharge of sulfate. The state agency included a condition with the permit “requiring U.S. Steel to develop a plan to study the sources of sulfate” in the tailings basin.

The MPCA continued to express concern about sulfate concentrations in subsequent years. In 2000, the agency issued a letter to U.S. Steel stressing its concern about elevated levels of sulfate in the waters surrounding Minntac. The two sides entered into a series of compliance schedules over the next decade to bring the groundwater sulfate levels down.

In 2010, U.S. Steel installed a “seep collection and return system” on one side of the tailings basin designed to capture and return wastewater seepage.

In 2018, U.S. Steel estimated groundwater sulfate levels ranging between 585 milligrams per liter to 928 mg per liter at various collection points around the facility. The MPCA issued the 2018 permit requiring U.S. Steel cut sulfate levels in half by 2025. It also required U.S. Steel to reduce sulfate levels in the tailings basin itself by 2028. The 250 mg-per-liter sulfate standard applied by the MPCA is part of drinking water standards set by the Environmental Protection Agency.

The Fond du Lac Band has argued that even the 250 level isn’t sufficient and should actually be 10 mg per liter.

U.S. Steel challenged the MPCA’s authority to apply groundwater standards to the permit. The Minnesota Court of Appeals held that the drinking water standards did not apply to groundwater because the relevant regulations “unambiguously do not classify groundwater.”

The MPCA argued that it has based many permits with groundwater protections and the appeals court decision jeopardized those rules.

The MPCA stated that the Supreme Court decision now provides clarity on waters the MPCA seeks to protect. The Supreme Court, in its ruling issued Feb. 10, stated case law and its preference to follow “plain language” that groundwater is part of regulations.

The Supreme Court settled the distinction with regard to groundwater but is allowing the court of appeals to complete an analysis of U.S. Steel’s request for a contested case hearing and groundwater standards variance. During that process, U.S. Steel won’t be required to keep sulfate levels within the range allowed in the MPCA permit.