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Conservation Groups Appeal PolyMet Permits and State Mining Rules

Acid mine drainage from underground mining of copper and other metals in a Canadian stream
By John LaForge

I want to share the Dec. 3 announcement from eight conservation and clean water groups of their appeal of Minnesota State permits issued for the PolyMet open-pit sulfide mine in northern Minnesota. The groups are challenging the permits issued by the Minnesota Department of Natural Resources (DNR) that would allow PolyMet to operate a 528-acre copper-nickel mine and to appropriate 6-billion gallons of fresh water per year. In addition to the permit appeals, a separate filing asks the Minnesota Court of Appeals to overturn Minnesota’s non-ferrous mining rules, saying they are too vague to be adequately enforced by courts and regulatory agencies.

“The courts must hold the DNR accountable to the law or PolyMet’s permits will be a blank check, paid for by the clean water, health, and pocketbooks of Minnesotans,” stated Kathryn Hoffman, chief executive officer of the Minnesota Center for Environmental Advocacy.

The department ignored tens of thousands of Minnesotans who asked it to protect people and the environment from PolyMet’s proposed mine. The permits for PolyMet’s proposed mine do not protect people downstream from the pollution the mine would create. The department arbitrarily rejected less risky alternatives for managing mine waste. The permits: allow PolyMet to threaten water downstream for hundreds of years after mining ends; fail to address concerns of engineers who fear the mine’s proposed waste dam is dangerous; and fail to protect Minnesota taxpayers from being stuck with up to $1 billion in cleanup costs.

“Taxpayers fund Minnesota DNR believing the agency will responsibly manage our natural resources,” said Chris Knopf, executive director of Friends of the Boundary Waters Wilderness. “With PolyMet, they put mining interests first and gave judicial review, popular opinion, and environmental considerations the back seat.”

The state permits also fail to define how long PolyMet will be allowed to mine or describe PolyMet’s exact mining and mine closure plans. Minnesota rules require final design plans to be submitted before permits are issued, but the state agency’s permits allow PolyMet to develop the open-pit mine and submit plans for closure later. The permits do not establish any standards for the approval of these future plans and the public will not be able to comment on them.

Myth of Strong Minnesota Regulations

“There is a myth in Minnesota that we have tough regulators. It’s just the opposite,” stated Paula Maccabee, advocacy director and counsel for WaterLegacy. “The DNR has granted PolyMet a permit to mine admitting that its ‘design and operational details’ are not ‘firmly in place.’ At the very least, with Minnesota’s first proposed sulfide mine, we should demand that no permits be issued unless and until PolyMet shows us — and an unbiased administrative judge — that they know what they’re doing.” WaterLegacy in 2015 petitioned the US EPA urging suspension of DNR and Minnesota Pollution Control Agency (MPCA) oversight authority, arguing that mining interests have undue influence in setting and enforcing water quality standards, and that the state legislature has deprived the MPCA of legal authority to implement the Clean Water Act. The petition is pending.

The new appeals also challenge the Minnesota state agency’s decision to deny requests for a “contested case hearing.” Such a hearing allows the case to be reviewed by a neutral administrative law judge, which is common for large, complex projects. The eight groups argue that the DNR was required to grant a contested case hearing before it issued any permits. “With over 1,300 signatures and a majority of elected officials, Duluthians openly requested a contested case hearing on this permit,” said J.T. Haines, an attorney and organizer with Duluth for Clean Water.

“That hearing should have been ordered. The process fails all the time with sulfide mining, and we don’t want to be the next example of communities harmed by downstream pollution,” Haines said.

“It’s reckless for the state to allow an open-pit copper mine at the precious headwaters of Lake Superior,” said Marc Fink, a Duluth attorney for the Center for Biological Diversity. “State officials are abdicating their responsibility to protect public health and the environment. They’re moving forward with unproven, incomplete mine plans even though they know PolyMet would destroy thousands of acres of wetlands and require water treatment for generations to come.”

December’s appeals are in addition to separate requests the groups made to the DNR and the MPCA in November. The groups asked the agencies suspend all permits for PolyMet until the Minnesota Court of Appeals rules on whether the DNR should prepare an environmental impact statement for the vastly larger versions of the proposed copper mine that PolyMet has described to its investors.

The groups appealing the permits are CENTER for BIOLOGICAL DIVERSITY, DULUTH for CLEAN WATER, FRIENDS of the BOUNDARY WATERS WILDERNESS, FRIENDS of the CLOQUET VALLEY STATE FOREST, MINNESOTA CENTER for ENVIRONMENTAL ADVOCACY, SAVE LAKE SUPERIOR ASSOCIATION, SAVE OUR SKY BLUE WATERS, and WATERLEGACY.

— High resolution video of the PolyMet mine and plant sites are available for use with proper credit, to download.

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Mining Industry Repealing Wisconsin Anti-Pollution Laws

By Kelly Lundeen

On November 8, Wisconsin lawmakers repealed the state’s “Prove-It-First” sulfide mining statute and sent it to Gov. Scott Walker for his signature. The law allowed for a mine to be licensed if its proponents could demonstrate that a similar mine had operated for 10 years and been closed for 10 years without causing acid mine drainage or polluting water. Since the requirement was never met, the statute has protected Wisconsin waters from sulfide mines since 1998. But beginning in 2013, Gov. Walker and Koch brothers-funded mining industry backers made repeal of the moratorium a top priority. Meanwhile, Republican Rep’s Jesse Kremer of Kewaskum, Rep. Cody Horlacher of Mukwonago, and Sen. Duey Stroebel of Saukville introduced bills to repeal state laws limiting air and water pollution not regulated under federal law.

A coalition of indigenous, environmental, and sports organizations mobilized to protect “Prove it first.” Over 20 years ago, many of the same groups had united around opposition to the metallic sulfide mining at Flambeau and Crandon, and saw the successful passage of the moratorium.

Back in the late ‘90s, both current Nukewatch staffers, John LaForge and I, were independently active in the anti-pollution struggle. For me, collecting postcards to support the Mining Moratorium and protesting the Crandon Mine was an early introduction to environmentalism as a geology student at University of Wisconsin-Eau Claire; and for John it meant organizing nonviolent action with Flambeau mine opponents from across the state.

Exxon’s Crandon mine proposal was stopped and the mine site sold to the Mole Lake Ojibway and the Forest County Potawatomi. The Flambeau Mine came and went, and the closed mine site has never been fully reclaimed after 20 years even though tailings were shipped off site. The Flambeau copper/gold operation was one of the major tools used by both sides of the moratorium repeal debate. Mining advocates claimed falsely that the site had been cleaned up, while opponents referred to the company’s own records to prove the site is polluting Stream 3, which feeds the Flambeau River. Flambeau mine site owners have never secured a mine reclamation “Certificate of Completion” due to the pollution—proven by 45 violations of water quality standards documented in a report by the Flambeau Mining Co. itself (a subsidiary of Rio Tinto). Unfortunately, industry-manufactured lies that “the Flambeau River remains fully protected” have dominated public discussion of the repeal.

At the state’s legislative hearings to repeal the moratorium, Nukewatch members and supporters joined dozens of others to testify. We gathered with our local network and used presentations, letters to the editor, and protest to educate the public and Assembly representatives.

“After hearing this,” said State Representative Romaine Quinn who attended a Nukewatch-organized presentation by Dr. Laura Gauger, “no, I don’t find myself supporting the mining bill.” However, Quinn voted for repeal.

Prior to the repeal bill’s passage, the author, Sen. “Toxic” Tom Tiffany, R-Hazelhurst, said, “exploratory companies tell me they are back in play (in Wisconsin) if we change the law.” Tiffany predicted that the bill could prompt companies to start early exploration work for copper, zinc, gold and silver as early as 2018.

—Dr. Robert E. Moran, “Summary: Flambeau Mine: Water Contamination and Selective ‘Alternative Facts,’” April 2017; Ecowatch, Jan. 4, 2013

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Presents Wrapped-up for Polluters & Arms Dealers

Federal Christmas presents are being lavished on toxic polluters, arms merchants, billionaires, and their Congressional lap dogs, while, as Zappa said, the meek shall inherit nothing.

As if pollution and graft made the country great, the Trump administration, with help from liberal Democrats, has been on a regulation-cancelling rampage, repealing rules on environmental protection, health care, financial services, and even internet accessibility. As of Dec. 15, Mr. Trump’s government-by-industrialists had revoked 67 rules, withdrawn 635 planned regulations, declared 244 rules “inactive,” and “delayed” 700 others.

Here at home, Rep. Rick Nolan, D-Crosby, managed to giftwrap for a foreign mining company the cancellation of an environmental study of mining in the watershed of the Boundary Waters Canoe Area. The US Forest Service had been examining environmental risks of several large mining proposals near the BWCA.

The giant Antofagasta Corporation from Chile wants to dig a massive underground copper mine southeast of Ely near the Kawishiwi River which flows directly into and through the protected boundary waters. If the study had a chance of finding little risk of permanent mine pollution, Nolan and the billionaire Chileans would have allowed it to proceed. But copper mines always wreck surface and groundwater, so mine proponents zeroed out the study, and, voila, its absence makes the plan look clean as hell.

Nolan and Rep. Tom Emmer also handed copper interests the repeal of a temporary ban on mining near the cherished wilderness. In related pollutionism, Congress also revoked a law that penalized coal mining for destroying area streams.

Budget Cuts for the Least of These

Meanwhile, the Republicans’ October budget provides nuclear weapons systems with hundreds of billions, while gouging $1 trillion from Medicaid and nearly $500 billion from Medicare. The government intends to spend about $40 billion every year for nine years on nuclear weapons programs, according to the Congressional Budget Office’s report “Projected Costs of US Nuclear Forces, 2017 to 2026.” Plans put forward by the Pentagon and the Energy Department would cost $400 billion over this period.

Of the $400 billion, the CBO estimates that Congress will approve $189 billion for new long-range jet bombers, long-range land-based missiles, and ballistic missile submarines; $9 billion for new short-range nuclear bombs and missiles; $87 billion for national laboratories that design and produce the new warheads, missiles and bombs; and $58 billion for nuclear war communications and warning systems. The remaining $56 billion of the $400 billion estimate is the CBO’s idea of likely cost overruns.

These estimates include the projected costs of new weapons that aren’t yet approved. Funds for a new long-range, land-based missile to replace today’s 450 have not been appropriated (and high-ranking military and civilian authorities have publicly attacked the plan saying they should be abolished, not replaced). The Long-range Stand Off missile — a nuclear-armed Cruise missile — has also been called unnecessary and destabilizing by former Secretaries of Defense and other experts. Still, both systems are expected by the CBO to see development take off in the coming years.

Senate Finance Committee Chair: “We don’t have money anymore”

While debating the Republican’s $1.5 trillion tax cut, Sen. Orrin Hatch, R-UT, spoke about the Children’s Health Insurance Program (CHIP) which needs $15 billion (its appropriation expired last Oct. 1). CHIP subsidizes exams, doctor visits, prescriptions and other health care for children in 9 million low-income families across the country.

Hatch actually said: “[L]et me tell you something: … the reason CHIP’s having trouble is because we don’t have money anymore.” As chairman of the Senate Finance Committee, Mr. Hatch just gave away 100 times the CHIP budget in a tax cut that aids high-income industrialists.

Navy submarines that fire long-range nuclear weapons are called Trident subs and the military wants to replace them all. The CBO report says that about $90 billion over 10 years should cover the cost of two new subs and plans for a third.

With Intercontinental Ballistic Missiles or ICBMs, the plan was to spend $43 billion over 10 years to make changes to the current missiles. But with plans for an all-new missile, former Sec. of Defense William Perry has said it will cost $100 billion.

An all-new long-range heavy jet bomber (sometimes alarmingly dubbed the “China bomber”) may cost $43 billion over 10 years. But then since “we don’t have money anymore,” the program may have to be renamed “Medicaid” or “Medicare” so that its budget can be trimmed. — John LaForge

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Minnesota Must Stop Ignoring State & Federal Mining Laws

Acid mine drainage from an abandoned gold mining site in Kantishna Mining District, Denali National Park, Alaska.

Governor Mark Dayton told the St. Paul Pioneer in October that he supports the PolyMet copper sulfide mining proposal, “But they still have to meet the environmental permitting requirements.”

The governor’s qualified endorsement of the controversial PolyMet mining plan raises the question of which environmental requirements have to be met.

Chris Knopf, of Friends of the Boundary Waters Wilderness, makes two crucial points in a Nov. 13 counterpoint in the Mpls StarTrib, “How the proposed PolyMet mine project would violate Minnesota regulations.” First, state law requires PolyMet to “permanently prevent substantially all water from moving through or over the mine waste,” after mine closure. But PolyMet’s plan is to leave mine waste in contact with water for hundreds of years. Second, PolyMet’s and the DNR’s own data, based on rock samples from the proposed site, project the amount of toxic heavy metals to be expected in the contaminated water after mine closure. But this research was set aside and ignored, while irrelevant data from a Yukon Territory mine was substituted — in order to minimize the amount of expected contamination. Tellingly, that mine’s water quality continues to deteriorate, yet state officials have allowed this dubious data switch to go unchallenged.

PolyMet’s plans, as outlined in its 2016 Final Environmental Impact Statement (FEIS), also appear to violate the federal Clean Water Act. Section 404 governing discharges into US waterways requires mining firms to use the “least environmentally damaging practicable alternative,” but this would mean underground extraction rather than open pits, and “dry stack tailings” of fine particle mine waste rather than PolyMet’s plan to dump slurry into unlined seepage ponds. Dry stacking is far less environmentally damaging since it doesn’t threaten groundwater contamination, but Paula Maccabee, an attorney for WaterLegacy, explains that PolyMet’s chose the cheaper options, not the least damaging, without adequate .

Maccabee submitted 80 pages of expert comment on the FEIS and she noted that the Clean Water Act also requires that PolyMet to make written guarantees regarding if and when company-funded cleanup programs will be conducted to fix unplanned “adverse impacts.”

Financial assurances and long-term guarantees

In October 2015, Governor Dayton said he wanted to hire an independent analysis of the financing behind the PolyMet Mining Corp. and its foreign owner, Glencore of Switzerland. Patrick Condon reported in the StarTribune that Dayton had “concerns” about Glencore whose environmental record was “mixed.” “That’s why I think the financial assurance part would be essential.”

That November Dayton followed up on his concerns, saying that if the giant mine was eventually permitted, Minnesota should demand “a rigorous system of community oversight,” like the one required of Upper Michigan’s Eagle mine which he visited that fall. The StarTribune’s Tony Kennedy reported that Dayton “was impressed by Michigan’s decision to require the [Eagle] mine’s owner to pay $300,000 annually into an independent oversight fund.”

As I reported here earlier, Michigan’s Eagle mine is 100 times smaller than the proposed PolyMet open pit. Dayton’s suggestion that Minnesota “should demand the same as Michigan,” means that PolyMet Mining Corp./Glencore should be required to pony up $30 million annually for independent, long-term ground water and surface water monitoring. If mine promoters like US Representative Rick Nolan, D-MN, are correct to predict that giant, open-pit sulfide deposits can be mined using “technological innovations that can mitigate mining’s environmental footprint” like acid mine drainage, then PolyMet/Glencore must guarantee it up front with legally binding agreements.

PolyMet’s own waste water modeling data initially stated that potential acid mine drainage would be a 500-year-long problem, so the water monitoring guarantee needs to amount to a guaranteed bond of $15 billion in today’s dollars.

Enter Phyllis Kahn, the long-time member of the Minnesota House. Kahn has raised the issue of paying for cleanup after the mine closes or following a pollution disaster. In a Nov. 14 letter to the StarTrib, Kahn points out that, historically “throughout the country,” after mine closure or a major mishap “the company goes belly up and the bank or financial institution backing it goes bankrupt.” To protect Minnesota’s water against this financial corruption, Kahn recommends that the state “require a bond issued by a reputable institution like Lloyd’s of London,” noting that the insurer’s refusal to offer a policy “or proposal of an unmeetabe rate” would speak volumes about the likelihood, severity and costs of the mine’s inevitable disasters. — John LaForge

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Poly-Met’s 500-Year Copper Nickle Pollution

The answer man Donald Trump said August 8 that halting all new federal regulations will create jobs. Notwithstanding the jobs created by implementing new regulations, Trump’s proposal has already been tried by the State of Minnesota, in a retroactive way, with consequences that are predictably toxic to water.

In 2015, the Minnesota Pollution Control Agency (MPCA) was forced to abandon its duty to protect state waters from mining runoff after the Legislature passed bills that “essentially exempted taconite mining” operations from complying with the 40-year-old sulfate standard for waters with wild rice — as Mordecai Specktor reports in the August 2016 issue of The Circle.

Paula Maccabee, advocacy director and chief counsel of the non-profit group Water Legacy, interviewed by Specktor, said the 2015 law that instructed the MPCA not to enforce the sulfate pollution standard “was the straw that broke the camel’s back.” Water Legacy then petitioned the US Environmental Protection Agency over the State Legislature’s and the MPCA’s “failure to respect the [US] Clean Water act and to enforce laws limiting mine pollution.”

Maccabee tole me in an email Aug. 8 “We consider the EPA’s protocol and the EPA’s many letters and requests for information from Minnesota agencies to function as replies to WaterLegacy’s petition to remove Minnesota state agencies” from oversight of mining operations.”

EPA staff are still in the process of conducting an in-depth investigation, so they have neither reached conclusions regarding their potential findings nor communicated them either to WaterLegacy or to MPCA. … I expect that both WaterLegacy and the MPCA will be given an opportunity to comment when EPA has reached the point of preparing draft findings resulting from its investigation.

“I believe it is likely that the MN attorney general will respond to EPA’s questions by August 12, since the AG hasn’t requested an additional extension of time.

PolyMet’s early pollution projections admitted that acid mine drainage – which permanently destroys surface water systems — from its proposed sulfide mine near the Boundary Waters Canoe Area Wilderness would be a serious problem for over 500 years. Consequently, PolyMet must be legally required to monitor for and clean up acid mine drainage for 500 years.

A 500-year cleanup mandate must also be applied to all future follow-on companies that will replace what’s now called “PolyMet.” Changing the name of mining companies is an age-old method of avoiding legal liability. PolyMet’s promises of clean copper-sulfide mining must be backed up with permanent guarantees for monitoring, and waste disposal, cleanup and reclamation no matter what subsequent PolyMet knockoff companies might be named.
Of course such a mandate has never been imposed on a mine project and would probably kill the proposal if imposed. This is why the embarrassing 500-year pollution warning has been buried by PolyMet and never appeared in the Final Environmental Impact Statement (FEIS) Nov. 6, 2015.
Instead, the company and DNR Commissioner Tom Landwehr use the term “indefinitely.” How can PolyMet be forced to prevent pollution “indefinitely”?

This is because PolyMet’s promises are really hot air, and Minnesota’s reputation at a good environmental steward is actually a myth that has never applied to Minnesota mining practices.

• Why has there been no independent water modeling required in the environmental review process? Critics point out that all the data and analysis of how much polluted water could drain from the mine site and the tailings site has come from PolyMet.

• As Water Legacy notes, “Across the country, there is no example where a sulfide mine has been operated and closed without polluting surface and/or groundwater with acid mine drainage, sulfuric acid and/or toxic metals.” Why has PolyMet been allowed to submit a shabbily supported environmental review based on unsubstantiated claims and faulty data?

• The FEIS concludes that it’s “unlikely” acid mine drainage will move north into the pristine Boundary Waters Wilderness, but that if the permanent pollution does flow north (permanently), PolyMet will “fill cracks in the bedrock.” Why is the potential devastation of the Boundary Waters, an otherwise highly-protected national wilderness treasured because of its lack of pollution, allowed to be brushed off with such fatuous gibberish?

I’m sure I’m not the first person to howl at that concept of “filling cracks in the bedrock.” The idea sounds like bovine excrement, or like the unworkable “ice wall” being built in Japan to slow groundwater flowing through Fukushima’s three melted reactors.

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