Political Matters – February 2020

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By Mordecai Specktor

More mining monkey business
In my January column, I wrote about the formal announcement of the Twin Metals Minnesota copper-nickel mining scheme, a mammoth extraction project that has created an uproar among environmentalists over its proximity to the Boundary Waters Canoe Area Wilderness (BWCA).

In that column, I also mentioned that the Fond du Lac band of Lake Superior Chippewa and a number of environmental groups have filed lawsuits in federal court to stop the PolyMet sulfide mine. After some 15 years of an environmental review process, PolyMet received various permits to mine from the Minnesota Department of Natural Resources (DNR), Nov. 1, 2018.

In January, PolyMet’s NorthMet mine project – proposed for a site near Babbit, on the eastern edge of the Mesabi Iron Range – encountered significant pushback in the courts and increased press attention.

“The Minnesota Court of Appeals on [Jan. 13] rejected some of the most important permits for the planned PolyMet copper-nickel mine in northeastern Minnesota, giving a major victory to environmentalists,” the Associated Press reported.

The AP story noted that the three-judge appellate panel said the DNR erred in not ordering a “contested case hearing” to gather more information about “potential environmental impacts from the mine.”

The Court of Appeals decision focused on PolyMet’s permit to mine and two dam safety permits. “The court suspended those permits in September because it wanted more information on how the DNR was responding to two major developments since it approved the permits in 2018,” AP reported. “Swiss-based commodities giant Glencore took a majority stake in the project. And there was a disastrous failure at an iron mine in Brazil of a tailings basin dam that had some similarities with PolyMet’s planned dam.”

The DNR-issued permit to mine included a financial assurance plan, but critics of the project point out that Glencore, the de facto owner of the project, is not on the hook for providing money needed to maintain the waste tailings dam after mining operations cease.
On Jan. 16, PolyMet announced that it would appeal the Court of Appeals ruling to the state’s Supreme Court. “The potential negative consequences of the decision to any industry or business in the state, and the many Iron Range communities and workers who stand to benefit economically from responsible copper-nickel mining, warrant the Minnesota Supreme Court’s attention,” said Jon Cherry, PolyMet’s president and CEO.

And as I write, critics of the PolyMet environmental review process are being heard in Ramsey County District Court in St. Paul. A fact-finding hearing referred by the Court of Appeals is looking at alleged irregularities in how the Minnesota Pollution Control Agency (MPCA) dealt with a water permit for the PolyMet project. The Fond du Lac band and several environmental groups – Center for Biological Diversity, Friends of the Boundary Waters Wilderness, Water Legacy and Minnesota Center for Environmental Advocacy – charge that MPCA officials tried to keep concerns from the U.S. Environmental Protection Agency (EPA) out of the public record.

The fact-finding hearing is dealing with a National Pollutant Discharge Elimination System/State Disposal System (NPDES) water pollution permit. In their brief to the court, lawyers for Fond du Lac and the environmental groups state: “MPCA broke the rules and deviated from its norms. When MPCA learned that EPA had prepared written comments on the draft PolyMet Permit, MPCA veered into uncharted territory and did something MPCA had never done before. MPCA lobbied EPA not to send EPA’s draft comments on the draft PolyMet Permit. Then MPCA concealed its efforts to lobby EPA, concealed that EPA had prepared written comments on the draft Permit, concealed that EPA had read these written comments aloud to MPCA, and concealed the highly critical substance of the comments themselves.”

On Jan. 28, Walker Orenstein wrote a lengthy story about the issues in the St. Paul district court hearing for MinnPost (bit.ly/minnpost-polymet). Among other things, Orenstein writes about the testimony of Kevin Pierard, a career EPA official who managed the regional NPDES program for nine years: “In early March 2018, Pierard said MPCA staff asked him ‘if there was any wiggle room’ to delay the EPA’s comments. Pierard testified the request was odd. He could not recall ever getting a similar request on a draft NPDES permit.”
Orenstein reports that “Pierard called MPCA staff on April 12, 2018, to detail his unsent comment letter. The call has been a major source of controversy since.” Notes on the phone call and other documentation of communications between the MPCA and the EPA have been destroyed, because MPCA officials did not believe they had to be archived, according to Orenstein.