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EPA reviewing Minnesota's water permits

The U.S. Environmental Protection Agency has laid out its plan to investigate allegations that the Minnesota Pollution Control Agency isn't doing its job enforcing the federal Clean Water Act on the Iron Range.

In a March 8 letter to PCA officials and the environmental group Water Legacy, the EPA said it will take a hard look at whether state regulators are adequately writing and enforcing water-quality permits issued to industries that pollute into waterways.

Indeed, PCA officials confirmed Tuesday that EPA staff already had been in their offices reviewing the taconite permits.

Minnesota-based Water Legacy asked for the rare review or audit of PCA permits last year saying there's ample evidence the state agency has failed to enforce federal Clean Water Act rules while regulating the state's taconite iron ore mining industry.

Water Legacy made the seven-page letter available Tuesday.

If the EPA determines the state isn't doing a proper job, the federal agency could, under a provision in the Clean Water Act, swoop in and retake all water-permit regulation from the state for all types of industry, not just mining.

Water Legacy claims the PCA has failed to update expired permits for taconite operations, written inadequately weak permits and failed to enforce the permits that are issued. The group claims that several mining permits require companies only to monitor levels of pollutants in their discharge and don't require any limits on those pollutants as required by federal law.

For example, Minntac in Mountain Iron has been operating its tailings basin under a permit that expired in 1992. Paula Maccabee, attorney for Water Legacy, said a February 2000 letter from MPCA to USX, the predecessor to U.S. Steel, indicated a new permit would include discharge limits for several pollutants, including sulfate. So far, no new permit has been issued.

The latest EPA summary lays out "exactly how they are going to investigate the questions that we've raised," Maccabee said. "They (EPA) haven't drawn any conclusions yet. ... But they have clearly laid out a very thorough look at what PCA is doing with NPDES (National Pollutant Discharge Elimination System) permits."

The EPA said it will conduct reviews in the PCA offices in St. Paul and Duluth during federal fiscal year 2016, which ends Sept. 31.

"The EPA has come to review some agency files and has additional files to review," the PCA said in a statement to the News Tribune on Tuesday. "This review is a long process."

It's the second time that environmental groups have asked for such a review. In 2008 the Minnesota Center for Environmental Advocacy petitioned the EPA to take PCA water permitting away, alleging the state was not enforcing phosphorus requirements.

Mike Rafferty, supervisor of communications and outreach for the PCA, said the EPA required his agency to meet certain requirements regarding phosphorus, which overfertilizes lakes and streams. Federal officials have notified the state agency that they are in compliance with those requirements, although the state has received no formal notice yet, Rafferty said.

Maccabee said not only is the PCA at fault for failing to enforce adequate permits, but that Minnesota lawmakers have a history of stepping in to affect enforcement, such as last year's legislation that prevents the PCA from enforcing limits to sulfate pollutants as they affect wild rice.

"It's not just the PCA looking the other way when it comes to enforcement of mining water quality permits, it's outright legislation that requires PCA to violate the Clean Water Act,'' Maccabee said.

In the summary of the review to come, EPA officials said they will research all mining-related water permits issued by the PCA. The review also will look at expired permits and whether permits are being requested and awarded on time.

The letter said EPA staff will determine "whether there is a significant backlog of expired NPDES permits (both major and minor) and whether MPCA has the capability — including staff, technical expertise and other resources — to effectively reissue expired permits,'' the letter notes. "EPA staff will consider the number of expired permits, along with the duration for which the permits have been expired and timeframes for reissuance."

The March 8 letter concludes by saying "EPA will make its finding available for public comment as expeditiously as possible."