Mining without Harm - Mesabi Nugget Draft Water Permit - Comments
Jane Reyer, Attorney at Law
220 Pike Lake Road Grand Marais, Minnesota 55604
218/387-3377
June 10, 2005
Commissioner Sheryl Corrigan
Minnesota Pollution Control Agency
520 Lafayette Road North
St. Paul, Minnesota 55155-4194
Re: NPDES/SDS Permit MN0067687, Mesabi Nugget, LLC
Request for denial of variance and withdrawal of draft permit
Dear Commissioner Corrigan,
I am writing on behalf of the National Wildlife Federation (NWF) and Sierra Club and their members to comment on the draft NPDES/SDS permit prepared by the Minnesota Pollution Control Agency for the proposed Mesabi Nugget facility at Hoyt Lakes, Minnesota. NWF is the Nation's largest member-supported conservation education and advocacy organization. NWF and its members want to maintain and protect the chemical, physical and biological integrity of the Nation's waters, including those in Minnesota. NWF's members enjoy the beneficial uses provided by wetlands, rivers, and lakes, including their value as habitat for fish and wildlife.
NWF has made a special commitment to protection and restoration of Lake Superior and its tributary waters, launching the Lake Superior Project in 1991. This project is dedicated to ensuring that the goals of the Lake Superior Binational Program, including the protection and restoration of ecosystems and water quality within the Lake Superior basin, are achieved.
The Sierra Club's 750,000 members are dedicated to protecting the wild places of the earth and promoting responsible use of the earths ecosystems and resources. The North Star Chapter includes members throughout the state of Minnesota, including many who enjoy the natural areas that may be impacted by pollution from the Mesabi Nuggets plant.
According to the public notice, the MPCA Board of Commissioners will be taking final action on this permit because it includes a variance. Were this not the case, we would petition for Board consideration. We request that these comments be provided to all Board members, and that we have the opportunity to address the Board concerning this permit.
NWF and the Sierra Club request that the Board deny the permit because the proposed variance is prohibited by federal and state law. If the Board does not deny the permit, we request that MPCA withdraw the draft permit, and reissue it with a new public comment period only if the agency makes all of the findings necessary to support the granting of a variance and complies with nondegradation procedures. Finally, we ask that an average effluent limit of 1.3 ng/L of mercury over the course of time be added to the permit.
The draft permit should not be issued because it will cause saline conditions in Second Creek and the Partridge River that will impair aquatic life.
MPCA acknowledges that Mesabi Nugget's discharge will cause or contribute to the violation of water quality standards for total dissolved solids, specific conductivity, hardness and bicarbonates in the receiving water. According to the Variance Issue Statement, "It is expected for substantial parts of the year that water quality standards will not be met for these four pollutants in Second Creek, given the minimal flows monitored at the headwaters to the creek and the predominance of the MNC discharge."
The water quality standards of 700 mg/L total dissolved solids and 1,000 uS cm specific conductivity are set at a level based on the use of water for irrigation. The level necessary to protect aquatic life is somewhat higher. Because virtually all waters are subject to the lower standard to protect for irrigation uses, a higher standard to protect for aquatic life has not been promulgated. This does not mean, however, that total dissolved solids do not affect aquatic life, nor that Minnesota's water quality standards do not provide this protection. Standards for Class 2B waters (including Second Creek and the Partridge River) include the provision that "No . . . industrial waste . . . shall be discharged into any of the waters of this category so as to cause any material change in any other substances or characteristics which may impair the quality of the waters of the state or the aquatic biota of any of the classes in subparts 2 to 6 or in any manner render them unsuitable or objectionable for fishing, fish culture, or recreational uses." Minn. R. 7050.0222(7).
According to the Variance Application at page 6, the company proposes to increase total dissolved solids in discharge water from the LTV pit from1,099 mg/L to 1,624 mg/L. A commonly used level for protecting aquatic life from the effects of total dissolved solids is a concentration of 1,000 mg/L. [1] Similarly, a common indicator of impacts to aquatic life for specific conductivity is 1,500 uS/cm; Mesabi Nugget's discharge will increase this parameter from 1,466 to 2,159. In other words, Mesabi Nugget's discharge is likely to take a situation that is currently marginal for aquatic life, and push it over the edge. Mesabi Nugget estimates that by year 21, the concentration of dissolved solids will rise to 1,974 mg/L almost twice the level that is likely to impact aquatic life. As MPCA acknowledges, Second Creek has virtually no capacity to buffer this level of salinity.
Mesabi Nugget provides (and MPCA apparently accepts) an analysis of the effects of the probable ions in its discharge for the proposition that "it is possible that the increase in TDS will not impact the daphnia or fathead minnow at all." Variance Application at 13. However, the accompanying explanation only states that some ions have a stronger impact than others; it provides no explanation at all as to the level of variation between these impacts. Furthermore, the discussion of the probable amounts of the various ions in the discharge is contradictory and vague. It is thus impossible to reach the conclusions made by Mesabi Nugget and MPCA based on the information provided.
Mesabi Nugget supports its application for a variance by pointing out that the current discharge from the LTV pit exceeds water quality standards. But the proposed course of action simply takes a bad situation and makes it worse. The water Mesabi Nugget discharges into the LTV pit will be far higher in dissolved salts than the water currently in the pit and being discharged from the pit. At the same time, less water will flow through the pit because Mesabi Nugget will release a great deal of that water to the air through its pollution control system. For this reason, the water in the pit will continue to get saltier as the years go by, as will the discharge from the pit. Despite promises of improvement through successive rounds of permitting, nothing in the support documents indicates that this situation will not worsen over the years. MPCA is currently dealing with several water quality problems from taconite industry discharges that have developed over many years and now prove extremely intransigent. One would hope that the agency would learn from past mistakes and refrain from permitting a new facility that promises to cause similarly difficult problems in the future.
The permit should not be issued because the variance is prohibited by federal law.
In proposing to permit this discharge, MPCA ignores both federal and state law. According to United States Environmental Protection Agency (EPA) regulations, "No permit may be issued . . . to a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards." 40 C.F.R. 122.4(i). The draft permit violates this prohibition. While the regulation goes on to allow such a discharge if a Total Maximum Daily Load (TMDL) has been calculated that leaves sufficient load allocation for the new discharge, the prohibition is not in any way limited to waters that are listed as impaired. This prohibition has not been displaced by state implementing regulations. See Minn. R. 7050.0210(6c).
Although it is unclear from the supporting documents, MPCA apparently relies on the allowance for variances from water quality related effluent limitations found at 40 C.F.R. 124.62(b)(2) to get around the federal prohibition on permits to new discharges that will violate water quality standards. However, nothing in 40 C.F.R. 122.4(i) indicates that this regulation can be circumvented with a variance. Instead, the best way to harmonize section 122.4(i) and section 124.62(b)(2) is to read the latter as allowing variances only for existing dischargers. Alternatively, water quality related effluent limitations are sometimes calculated for several polluters in the same watershed, such that a variance for one of those polluters would not result in violations of water quality standards.
Furthermore, the proposed permit is also prohibited by the EPA's Great Lakes Initiative (GLI) regulations. Federal regulations prohibit the issuance of a variance to a new Great Lakes discharger or recommencing discharger. 40 C.F.R. 132, App. F, Procedure 2.A.1. (specifying that the "provision [authorizing states to grant a variance to a water quality standard which is the basis of a water quality-based effluent limitation] shall not apply to new Great Lakes dischargers or recommencing dischargers.") As MPCA acknowledges in its fact sheet, Mesabi Nugget is a new Great Lakes discharger. See also 40 C.F.R. 132.2.
Unlike many other GLI provisions, the variance procedure is not limited to a particular set of toxic pollutants, but applies to all pollutants to which water quality standards apply. Compare, e.g., 40 C.F.R. 132, App. F and 40 C.F.R. 132, App. E. As a part of the variance procedure, the disallowance of variances for new dischargers is not limited to a particular set of toxic pollutants.
MPCA apparently operates under the misconception that the GLI addresses only a certain list of toxic substances. This is simply untrue. As EPA stated in the preamble to its Final Water Quality Guidance for the Great Lakes System, "The Guidance for the Great Lakes System will help establish consistent, enforceable, long-term protection from all types of pollutants, but will place short-term emphasis on the types of long-lasting pollutants that accumulate in the food web and pose a threat to the Great Lakes System." 60 Fed. Reg. 15,366 (1995) (emphasis added). While many of the provisions of the GLI are limited to listed pollutants, those that do not include limiting language (such as the variance procedures) are applicable to all pollutants.
The permit should not be issued because the variance is prohibited by state law.
Minnesota state law also prohibits the granting of this permit. Pursuant to the Minnesota Environmental Policy Act (MEPA), no permit may be issued where such permit "is likely to cause pollution, impairment, or destruction of the air, water, land or other natural resources located within the state, so long as there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety, and welfare and the state's paramount concern for the protection of its air, water, land and other natural resources from pollution, impairment, or destruction. Economic considerations alone shall not justify such conduct." Minn. Stat. 116D.04(6). [2] In this situation, both not permitting the plant and requiring the plant to treat its discharge to reduce total dissolved solids are feasible and prudent alternatives that are "consistent with the reasonable requirements of the public health, safety, and welfare and the state's paramount concern for the protection of its air, water, land and other natural resources from pollution, impairment, or destruction."
The justification advanced by Mesabi Nugget and MPCA for a variance from water quality standards is the "technical infeasibility" of additional treatment for total dissolved solids. However, it is clear from the variance application that treatment is not technically infeasible. Treatment for dissolved solids is routinely used at other types of facilities. Rather, the company and the agency have determined that treatment 1) is too expensive for this type of operation and 2) would require additional procedures that will add to the complexity of the treatment system. [3] Mesabi Nugget's representation that this treatment is somehow untested because this is a new type of facility is absurd. A treatment system operating downstream of the plants processes would operate in the same way that it would for any other type of facility.
Given MEPA's prohibition on justifying pollution based on "economic considerations alone," this attempt to transform an issue of economic feasibility into one of technical feasibility cannot be countenanced. In any event, even if treatment were technically infeasible, the permit and support documents provide no support for a determination that denying the variance is not a "feasible and prudent alternative consistent with the reasonable requirements of the public health, safety, and welfare and the state's paramount concern for the protection of its air, water, land and other natural resources from pollution, impairment, or destruction."
The permit should not be issued because MPCA failed to comply with federal and state regulations governing the granting of variances.
As explained above, MPCA should have followed EPA's GLI guidance for variances in processing this permit application. Even aside from the prohibition on variances for new dischargers found in that guidance, MPCA has completely failed to follow the variance procedures.
Even if MPCA's reliance on its general variance regulations were correct, MPCA also ignored a pertinent requirement of those regulations. The non-GLI state regulation governing variances from water discharge permitting standards requires three findings. First, the agency must find "that by reason of exceptional circumstances the strict enforcement of any provision of these standards would cause undue hardship;" second, "that disposal of the sewage, industrial waste, or other waste is necessary for the public health, safety, or welfare;" and third, "that strict conformity with the standards would be unreasonable, impractical, or not feasible under the circumstances." Minn. R. 7050.0190. All three of these factors must be present to allow for a variance under this regulation.
MPCA has completely eliminated the second of these three factors from its discussion, which reads, "Minn. R. 7050.0190, subp. 1 allows a variance for discharges of hardness, bicarbonates, specific conductivity, and total dissolved salts (solids) in a situation where strict compliance with the standards would cause the discharger undue hardship; and that strict conformity with the standards would be unreasonable, impractical, or not feasible under the circumstances." MPCA Variance Issue Statement at 4.
NWF and the Sierra Club do not believe that an adequate showing has been made that the disposal of Mesabi Nugget's industrial waste at the level of salinity that it proposes is "necessary to the public health, safety, or welfare." In any event, MPCA should at least make the requisite findings and provide an explanation prior to the public comment period, to allow for rebuttal and opposing evidence and opinions, and to allow for a determination as to whether a contested case hearing is necessary. At this point, because NWF and the Sierra Club do not know whether MPCA believes that this discharge is necessary to the public health, safety, or welfare and if so, on what basis, we are unable to determine whether we agree with MPCA's position. We thus will be precluded from meaningful comment if the permit is finalized without further explanation by MPCA followed by an additional comment period.
MPCA should follow nondegradation procedures for this permit because the discharge will degrade water quality in Second Creek and the Partridge River.
MPCA's failure to follow nondegradation procedures for this permit is unconscionable. It is clear that water quality in Second Creek (and likely in the Partridge River as well) is going to degrade as a result of this permit. While NWF and the Sierra Club hold that the prohibition on new discharges that violate water quality standards (cited above) applies to this situation and thus obviates the nondegradation requirement, we argue in the alternative that if a variance from that prohibition is available, at the very least, nondegradation procedures must be followed.
The nondegradation requirements for the pollutants included in the variance apply to "new or expanded significant discharges." Although MPCA is unclear on this point, it apparently determined that the Mesabi Nugget discharge will be an "expanded" discharge rather than a "new" one. An expanded discharge is "a discharge that changes in volume, quality, location, or any other manner . . . such that an increased loading of one or more pollutants results." Minn. R. 7050.0185(2)(B). "Loading" is not defined.
Despite the very clear policy behind the nondegradation rules, MPCA has chosen to define loading as a mass loading rather than as a loading per volume. As a result, MPCA has determined that nondegradation rules do not apply despite the fact that the water quality in Second Creek (and likely in the Partridge River) will degrade significantly as a result of this permit. The policy stated in the nondegradation regulation is "to protect all waters from significant degradation . . . and to maintain existing water uses, aquatic and wetland habitats, and the level of water quality necessary to protect these uses." Minn. R. 7050.0185(1). MPCA's arbitrary definition of the word "loading" in this situation flies in the face of its stated policy.
Furthermore, we disagree that Mesabi Nugget's discharge is an "expanded" discharge rather than a "new" discharge. MPCA acknowledges that the company is a new discharger. It defies logic to nonetheless hold that its discharge already exists. This is a new company, using a completely new process to produce a completely new product. It will discharge significant levels of pollutants from its newly constructed facilities. The fact that it is taking over an outflow that was formerly used by a company and facility that no longer exist does not transform this into an existing discharge.
MPCA should add a requirement that an average concentration of 1.3 ng/L of mercury be met over the course of time.
Based on the water quality standard of 1.3 ng/L, MPCA has calculated an average monthly effluent limit of 1.8 ng/L for mercury. Our understanding is that this limit is based on a statistical analysis drawn from "typical" effluent variation from a wide range of dischargers. Counter-intuitively, if a discharger conducts two tests for mercury and they average 1.8 ng/L, the agency concludes that the average effluent over the course of the month is below 1.3 ng/L.
We understand that at the minimal level of testing of twice per month, the monthly average mercury concentration in the effluent may appear to be higher than it actually is (i.e., there is a certain probability that the two samples will both be taken at a point when the mercury concentration is higher than average). However, this should be less true over time. We are concerned that if sampling indicates that the discharge is consistently above 1.3 ng/L, this permit will allow water quality exceedances so long as no two consecutive tests average above 1.8 ng/L.
NWF and the Sierra Club request that the permit include lower averages over the course of time. Presumably at some point, the average of all data points will need to approach 1.3 ng/L in order to conclude that water quality standards are being met. We ask that MPCA calculate this point and include a permit provision to reflect it. If that point is beyond the course of five years (120 data points), we ask that interim lower limits be set at the three- and five-year points.
Conclusion
As a final note, we would like to let the MPCA Board know that the limited time for review has made review of this permit very difficult. When the agency spoke to the legislature on behalf of this project in the spring of 2004, we and other members of the public were told that the agency would hold a forty-five day comment period to make up somewhat for the lack of environmental review. This promise was broken. Notice of the public meeting was given thirty days before the hearing, as required, but draft permits were not available for review at that time.
We hope the agency understands that the more difficult it is for the public to review permits within the given time frame, the more unlikely it will be that disagreements over permits and variances can be addressed without contested cases or court review. As an example, we have known that mercury was going to be an issue with this permit for more than a year. As a result, meetings and conversations have been held between Mesabi Nugget staff and environmentalists, and between MPCA staff and environmentalists. The outcome for mercury discharge has been positive. Providing the shortest time possible for public response to environmental issues raised by a new facility does not in the end benefit anyone.
We also object to the short timeframe MPCA has requested for EPA review of the variance. MPCA staff has informed me that the agency requested that EPA act on this permit by June17, just four days after the close of the public comment period. We do not believe this provides sufficient time for EPA consideration of public comment. Under the GLI variance regulations, MPCA is required to submit public comments received during the comment period to EPA along with the permit for its approval. 40 C.F.R. Pt. 132, App. F., Procedure 2.I. MPCA's rush to issue this permit has transformed public review requirements into a pro forma exercise, with no real opportunity to address public concerns.
Thank you for considering these comments. Please let me know when this matter is placed on the Board's agenda.
Sincerely,
Jane Reyer
Cc: Richard Clark
David Pfeifer
[1] See, e.g., Mesabi Nugget Variance Application at 12.
[2] While special legislation exempts this facility from the environmental review provisions of MEPA, it does not exempt permits for the facility from this prohibition.
[3] Mesabi Nugget also characterizes the use of additional treatment as "risky." However, it is clear from the discussion in its variance application that the risk is not that the process will not work; the risk is that it will cost too much to be economically viable. See Variance Application at 7.