In 1969, the Minnesota Pollution Control Agency (MPCA) began proceedings to revoke Reserve Mining’s permit to dump taconite tailings into Lake Superior, which it had been doing at the rate of 67,000 tons per day for 25 years. Reserve reacted the way mining companies always do, claiming that their right to conduct activity pursuant to a permit – regardless of how harmful it is – is a virtual property right, and that permits are irrevocable and endlessly renewable. It took a lot of people at the MPCA, including my former law partner, Grant Merritt, who was the head of the MPCA from 1971 to 1975; the Minnesota attorney general’s office; and the Environmental Protection Agency (EPA) 11 years — until 1980 – to finally prove Reserve wrong. Reserve kept at it, but thankfully, so did the MPCA.
My, how times have changed. Today’s MPCA is a servant of the mining companies, making strenuous efforts to avoid enforcing the Clean Water Act and preventing the Lake Superior Chippewa Bands or environmentalists from doing it, either. I will give you two very recent examples: the water discharge permits issued to PolyMet Mining and to MinnTac.
The raison d’être of the Clean Water Act is to regulate and limit point sources of pollution – the contamination of water – by chemical, biological, or physical agents. In general, if there is the risk of the discharge of a pollutant by a source, that pollutant is supposed to be limited at the point of discharge by a site-specific PCA permit that includes a water-quality-based effluent limit for that pollutant. So-called WQBELs are the heart of the Clean Water Act.
Neither the PolyMet permit nor the MinnTac permit as issued by the PCA has WQBELs.
The PolyMet water discharge permit, issued as the Mark Dayton administration’s PCA commissioner was headed out the door, was found objectionable by a senior staff member of the Environmental Protection Agency because, among other things, it lacked WQBELs. As we know, our PCA, along with political leadership at the EPA’s Region 5, suppressed the objections, and we would have never known about them if they hadn’t been leaked.
Also in 2018, in the case of MinnTac, the MPCA issued a half-hearted water permit to replace one that expired in 1992, to head off an EPA enforcement action because of off-the-charts sulfate pollution that the EPA found in an inspection. And again, we only found out recently, because of a Freedom of Information Act request to the EPA, that the MPCA and the EPA’s political leadership were behind the kid gloves treatment of MinnTac. The new permit didn’t have WQBELs. The lack of WQBELs is one of the reasons that the Minnesota Court of Appeals struck down the new permit; the old permit didn’t have them either.
You do see a pattern here, don’t you? Frankly, one would be foolish to expect anything different from Trump’s EPA. But it is painful to consider such skullduggery from our own MPCA.
Both the PolyMet and MinnTac permits remain in litigation: PolyMet before the Court of Appeals and MinnTac before the Supreme Court. There are almost never do-overs when mining permits become final; Reserve Mining’s water discharge permit was a drawn out but glorious exception.
If the MPCA is successful in slipping the environment a mickey on either of these permits, there will be nothing for anybody, including the Lake Superior Chippewa Bands or the environmental nonprofits, to enforce. That’s because of something in the Clean Water Act called the “permit shield.” The shield allows a polluter to defend an action against it under the CWA by proving that it is in compliance with its permit, regardless of how improvidently or corruptly the permit was issued by the regulator. If you get the right regulators, they are not your regulators; they are your defenders.
That is what happened at a closed copper mine near Ladysmith, Wisconsin, known as the Flambeau Mine. Levels of copper and heavy metals pollution were discovered in streams surrounding the mine (it didn’t have stored tailings because the ore was all hauled off site) that exceeded limits that would have been permitted by the Clean Water Act and Wisconsin water quality standards. It didn’t matter, the Seventh Circuit Court of Appeals said in a suit brought by environmentalists, because the mining company was in compliance with its poorly written – and perhaps corrupt – permit.
It’s a pity, but we don’t get to elect the commissioner of the Minnesota Pollution Control Agency. We do, however, get to elect the governor. If you believe, as I do, that the reign of industry capture, inattention, and corruption at the MPCA must come to an end, Gov. Tim Walz needs to hear pointed questions from you. After all, it’s his administration now, and Lt. Gov. Peggy Flanagan’s as well.
If enough people do that, perhaps we’ll return to the days of leadership on the environment exemplified by our regulatory leaders in the Reserve case.
Steve Timmer is a retired Twin Cities lawyer. His twitter handle is @stevetimmer.
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