The DNR and PCA don’t deserve a pass from the Supreme Court

Important cases are pending before the Minnesota high court

A note about the photo of Trimble Creek: On the horizon in the upper right corner of the photo is the PolyMet crushing plant. In the upper center of the photo is the existing LTV taconite tailings impoundment, which PolyMet also owns. You can see that both are at a higher elevation than Trimble Creek.  Pollution in the form of heavy metals or reactive sulfides that escape the plant or the impoundment will empty into the creek, a headwaters stream of the St. Louis River. Trimble Creek and the Embarrass River which it feeds, would be in the inundation zone in case of a tailings dam failure. PolyMet intends to build the dam significantly higher to hold more tailings.

– o O o –

Over the last ten months or so, MinnPost has published a handful of Community Voices pieces that I wrote. They are:

On PolyMet, can the state really ‘do things right’? (Published August 30, 2019)

At issue in Minnesota’s sulfide mining debate: environmental justice (Published September 12, 2019)

Important issues before the Court of Appeals on PolyMet (Published October 18, 2019)

The Ojibwe have every right to oppose copper-nickel mining in northern Minnesota (Published February 28, 2020)

And just recently:

Twin Metals and PolyMet: Why is one mine objectionable and not the other? (Published July 16, 2020)

Even a casual observer will detect the theme. Here, though, I would like to pick up a thread from the first piece and the last one.

In my August 2019 CV piece, I refer several times to an interview that Governor Walz gave to Walker Orenstein, a reporter at MinnPost who covers the environmental beat, on August 12, 2019. In that interview, the governor discusses multiple topics surrounding PolyMet, including Minnesota environmental law, issues related to mine tailings storage, and PolyMet’s total reliance on Glencore, the Swiss mining company and international bad boy, for its existence; Glencore could allow PolyMet to vaporize, if it was convenient (my words, not the governor’s).

The Minnesota DNR was exclusively focused on permitting the bankrupt LTV crushing plant and tailings dam and impoundment purchased by PolyMet

In response to a question from Orenstein, the governor said this about “dry stack” storage of mine tailings, versus the wet tailings impoundment that PolyMet bought from the bankrupt LTV and proposes to use:

I think it’s a technology that makes sense. But each of these mines is different and each of these proposals is different. And I think what we know is the environmental footprint on the NorthMet project being run by PolyMet, and of course Glencore being the main [only, Ed.] backer, it’s an existing mine with an existing pit. And the reason for that is it’s less environmental impact, less movement around, less impact on wetland. And the determination was made, and still supported by DNR in the permitting process, that in this instance in this piece of land, it makes more sense to use the tailings dam the way it is.

First of all, PolyMet’s mine would be a brand-new hole in the ground. The processing plant and tailings dam and impoundment do exist; they were purchased by PolyMet, indirectly, from the bankrupt taconite miner, LTV.

Contrary to what the governor said, PolyMet’s brand-new hole in the ground will involve the largest single destruction of wetlands in Minnesota history.

Governor Walz also makes it sound as though dry stack versus wet tailings storage was carefully considered. As mentioned in the July 2020 Community Voices piece at MinnPost, though, that isn’t true.

The DNR considered nothing except the use of the old LTV plant, dam and impoundment; it wanted to permit them quickly.

That’s apparent from DNR scoping materials referred to in the July 2020 CV piece.

The environmental regulators in Minnesota are hopeless, industry-captured lickspittles

Governor Walz also said this in the interview with Walker Orenstein:

Minnesota’s process, I’m proud that it is stringent. But I do think we need to — you know, 14 years of process [for PolyMet] — we’ve got to give some more certainty. I don’t think you cut any corners. … Those who say it’s just not worth it, I hear them. I think that is an equation that I have to balance. Is the economic and the environmental benefit outweighed by the environmental risk or the change that could happen to groundwater and everything else? Those are things we’re trying to figure out.

[Snort.] Miners in Minnesota operate on expired permits, sometimes for decades, and neither the regulators nor the miners want to update the permits because the old ones are so comfy. As one teeny (not so teeny, really) example, MinnTac has operated a taconite mine on an expired permit since 1992. Then, when the Minnesota Pollution Control Agency got around to issuing a new permit, it was struck down by the Minnesota Court of Appeals because it toothlessly failed to regulate much of anything. The permit’s lack of something called WQBELS (limitations on specific pollutants) rendered the permit essentially unenforceable by, especially, environmental groups or the Lake Superior Chippewa Bands, because of what is known as the “permit shield.”

Perhaps you will be only mildly surprised to learn that the water discharge permit issued by the PCA for PolyMet didn’t have WQBELs in it either. That’s one of the reasons it’s in litigation, too.

The governor is not a Biblical figure

The governor managed to pack a lot into that one paragraph of the interview, including his claim that he was a Solomon anointed to divide the baby and balance economic and environmental risks.

I’ve observed before that the Lake Superior Chippewa Bands, the City of Duluth, and Lake Superior bear the risks, and the mining companies and a few hundred people get the benefits, at least between layoffs. In any event, the governor doesn’t get to trade away environmental protection. The Supreme Court of Minnesota reminded the DNR and the governor of that just recently in a case involving DNR permitting of water appropriation that seriously negatively harmed water levels in White Bear Lake.

Consideration of the PolyMet project is littered with this kind of balancing act language, by resource and pollution regulators, mining proponents, and by former Governor Dayton, who said he thought the project was “a risk worth taking,” even though he was playing poker with the Ojibwe’s money—their treaty-guaranteed resources—not is own.

Everybody wants to play with the Ojibwe’s chips.

In the interview with Walker Orenstein, the governor said, “We’re not going to cut any corners.” That was in August 2019. In the fall of the year, the Minnesota Court of Appeals heard cases about corner cutting by both the DNR and the PCA, and found it on every permit issued to PolyMet.

The Court of Appeals sent the PCA’s water discharge permit to the district court in Ramsey County for some fact finding, which is still going on, and it sent the PCA’s air pollution permit and the DNR’s dam permits and the permit to mine back to the agencies to conduct contested case proceedings before the Office Administrative Hearings.

Rather than accept the court’s judgment, though, the Walz administration (along with PolyMet) appealed the decisions to the Minnesota Supreme Court, where the appeals are pending.

– o O o –

The decisions of the DNR and the PCA to issue permits to the never-a-miner PolyMet (although it has existed for decades, never earning a dime from operations, unless you consider stock offerings on the penny stock market and borrowing money to be “operations”) cry out to be examined by a neutral administrative law judge with a genuine public record to be made.

These agencies have demonstrated their unreliability to operate in the public interest and to do their primary job: protecting the resources and environment of Minnesota.