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On PolyMet, can the state really ‘do things right’?

MinnPost photo by Walker Orenstein
PolyMet building

Gov. Tim Walz met recently with representatives of the Swiss Glencore and Canadian PolyMet Mining to discuss the open pit mine and processing project that is planned by them near Hoyt Lakes. The governor had an interview with MinnPost’s Walker Orenstein, published on Aug. 12, to discuss the project, and mining in general, saying that, “I think we can do things right.”

The record to date is not encouraging. Here are some of the reasons to doubt the governor’s opinion on the matter.

Industry-captured regulators and their scandalous conduct. The Minnesota Pollution Control Agency (MPCA) suppressed the critical comments of the EPA’s Chicago office about the proposed, toothless water discharge permit that the MPCA ultimately issued.

Some of these MPCA personnel are still in the Walz administration. We can’t have confidence in the blandishments of the governor or anyone else that the mine will be safe.

The governor’s transition team apparently received information from former employees at the MPCA about the agency’s mining section’s approach to regulation.

The governor comments, “I think the incidents with the [court ordered] stay on the discharge permit shows that there’s at least a question of how that [a solid, verifiable, and trustworthy process] would happen. I am confident that we did that correctly; I am confident that it did not compromise a permit. But I am also very cognizant from the perception of it that people are frustrated by that.”

But the water discharge permit is compromised. That’s what the EPA staffers said: It would “authorize discharges that would exceed Minnesota’s federally approved human health and/or aquatic life water quality standards for mercury, copper, arsenic, cadmium, and zinc.

The issuance of a water discharge permit without specific limits for several heavy metals is an attempt to evade the Clean Water Act. Mining permits do not get made stronger after issuance; they only get made weaker. Miners maintain permits are property rights.

There is only one case in memory where a permit to mine was made more stringent: Reserve Mining Company being restrained from discharging tailings into Lake Superior in the ’70s. And it was a titanic effort that took years and was fought by Reserve tooth and nail.

More often, a mining company will seek to weaken the environmental, public safety, or financial requirements of a permit and threaten a loss of employment if it doesn’t get them.

The toothless water discharge permit deprives the public of a remedy for pollution of the water. The MPCA’s water discharge permit prevents enforcement of the Clean Water Act (CWA) because of something called the “permit shield.”

It is a defense to an action by the public to enforce the CWA to say, We’re in compliance with our permit. Regardless of the degree of malfeasance, corruption, or dishonesty that led to the issuance of the permit.

A case in point: Wisconsin Resources Protection Council v. Flambeau Mining Company.

The Flambeau mine was a copper mine touted as a mine without pollution, a Grotto of the Miracle of the Immaculate Extraction. Former DNR Commissioner Tom Landwehr cited the mine as an example of how mining could be done safely.

Steve Timmer
Steve Timmer
In Wisconsin federal district court, environmentalists proved that the Flambeau mine was not a mine without pollution, but rather it followed in the footsteps of all sulfide mines. It polluted, contrary to the provisions of the Clean Water Act, into a creek that was a tributary to the Flambeau River.

Too bad, said the Seventh Circuit, The mine is in compliance with the permit issued by the Wisconsin DNR. The permit lacked standards for certain pollutants, just as the one issued by the MPCA for PolyMet.

If you have the right regulators, they are your defenders, not your regulators. We can assume that Glencore/PolyMet know their ore body pretty well. Perhaps they influenced the MPCA to issue a permit that avoids mention of pollutants that they knew would be tough to handle. Based on what we know at the moment, it would be difficult to come to any other conclusion. We need to get to the bottom of it, anyway.

The MPCA just says, “Look at how long the permit is.”

The upstream tailings dam permitted by the DNR is a dangerous joke. This type of tailings dam has a regrettable propensity to “liquefy.” Simply, that means if the dam and its substrate are sufficiently saturated with water, the dam will collapse. To prevent that from happening, water needs to be pumped out continuously to keep the dam dry enough to be stable. That means somebody has to be around to run and maintain the pumps, for perhaps hundreds of years.

It also means we have to figure out what to do with lots and lots of sulfate and heavy metal contaminated water that is pumped out.

Upstream tailings dams of the sort that PolyMet bought – indirectly, anyway – from LTV have failed three times in the last handful of years, twice in Brazil and once in British Columbia. In two of the three incidents, consultants to the PolyMet project were involved.

The tailings dam at Mount Polley in Canada that failed in 2014 was designed by Knight Piésold, an engineering firm that was, and perhaps still is, consultant to the Minnesota DNR on PolyMet. Naturally, Knight Piésold ran away from Mount Polley as fast as it could after the dam failed and poisoned one of the largest sockeye salmon runs on the planet.

Scott Olson, consultant to PolyMet, also ran from the recent Brazilian tailings dam collapse that killed 240 or so people after the dam failure. Olson was an author of a report just months before the collapse saying that the dam in question required “no immediate action.”

If we assume for a moment that Olson is skilled and experienced in this kind of thing, we also have to assume that upstream tailings dams can collapse in spite of expectations, and catastrophically so.

Upstream tailings dams are being phased out and removed in Brazil.

It is also important to remember that the tailings dam and basin purchased by PolyMet as a result of the LTV bankruptcy has about $90 million in deferred maintenance. How that happened without any enforcement action by the DNR is also a cautionary tale.

Permitting the PolyMet mine without a Glencore financial guarantee and backstop is governing malpractice. We know that, on its own, PolyMet couldn’t dig a foxhole, nor could it pay to fill it up again. Because of the lengthy reclamation period, any permit to mine will be open for a long time, perhaps hundreds of years after the mine closes. For that to be meaningful, it requires a permitee who can continue to perform the conditions of the permit, stand for the damages the mine might cause, and provide public liability insurance to compensate citizens and the state for the mine’s harm. Financial assurances might cover reclamation costs, but not tort damages, direct and consequential, for loss to life, property, livelihoods, and the environment.

The governor avers in the interview that “we just learned” that we were dealing with Glencore, but that’s not true. In a 2014 hearing of a natural resources committee in the Minnesota House, several people, including me, testified about the critical role played by Glencore for PolyMet.

At the same hearing, I told Jess Richards, director of the Land and Minerals Division of the DNR, in a sidebar, that Glencore was – even in early 2014, and truthfully much earlier than that – in practical control of PolyMet and needed to be on the permit. “Oh, no,” he said, “We can’t do that.”

We’d better do that, or we are utter fools. The governor said after the Glencore meeting that Glencore was not wild about the idea of being on the permit, and its representatives said that it might interfere with its ability to raise money for the mine.

When the bankers run, the governor, and the rest of us should probably, too.

The governor says that we’ve been at the issue of permitting PolyMet for 14 years, as though we should just give up and give them what they want. When 14 years yields a 400-plus page water discharge permit that fails to prohibit heavy metal pollution, approves the most dangerous tailing storage system extant (and now prohibited by Brazil), and fails to have the financial commitment of the real party in interest, though, the time has been poorly spent.

Steve Timmer is retired after practicing law in the Twin Cities for over 40 years. His Twitter handle is @stevetimmer.


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Comments (15)

  1. Submitted by Tom Berkelman on 08/30/2019 - 05:24 pm.

    Gov. Walz and the Legislature are supporting “a public conversation” to legalize pot BUT they refuse to hold a legislative hearing to discuss pouring toxins into the water. It stuns the senses.

    How bad does is it when the Trump EPA has to leak emails for the unconscionable actions of MPCA ? And Walz and legislative leadership nevertheless continue to defend a corrupt process. The fish rots from the head down.

  2. Submitted by Joe Musich on 08/30/2019 - 10:34 pm.

    This line of presentation and then escape pretty much encapsulates what local defenders have been doing since the beginning as their hands are perpetually getting caught in the cookie jar of truth….

    …..”…..Scott Olson, consultant to PolyMet, also ran from the recent Brazilian tailings dam collapse that killed 240 or so people after the dam failure. Olson was an author of a report just months before the collapse saying that the dam in question required “no immediate action.”

    Expectations are created then debunked by reality over and over again. It must be kept in mind that better recycling and conservation would provide the minerals these capitalist gangsters claim we need so badly. We can have both but that is the only way. But the mining advocates have their interests and they will not relinquish. There were probably those who notice the lead lined aqueducts of Rome were problematic but also gained no ground on the powerful.

    If we assume for a moment that Olson is skilled and experienced in this kind of thing, we also have to assume that upstream tailings dams can collapse in spite of expectations, and catastrophically so.

    • Submitted by Tom Berkelman on 08/31/2019 - 08:53 am.

      While we all will suffer when the leakage occurs, immediately downstream from PolyMet is the Fond du Lac tribal community. It is shocking that Lt Gov Flanagan is quietly sitting by as this tragic policy unfolds. Why?

  3. Submitted by richard owens on 08/31/2019 - 09:25 am.

    It is deeply disappointing to see the governor and both our senators clearly avoiding doing the right thing for Minnesota’s vulnerable watershed.

    They know there is a huge risk and historic evidence that should supersede political wishes and short-term economic gain.

    They also know, (unless they have turned a blind eye) that the MPCA did not perform due diligence in permitting, ignored the expansion and did not set effluent volumes or limits. The enforcement of the Clean Water Act is sabotaged.

    We count on our elected representatives to be informed and to act in the best interests of the state, LONG TERM.

    Political courage or opportunism?

    Will those who are paid to protect our lands and waters start doing it?
    I hope they will be held individually liable for their sell-out.

  4. Submitted by Steve Timmer on 08/31/2019 - 03:25 pm.

    In his interview with Walker Orenstein about PolyMet, Governor Walz said the upstream tailings dam was best because it had a “smaller environmental footprint.” That’s clearly wrong on multiple levels, but the real reason that PolyMet wants it is because it bought the bankrupt LTV’s tailings dam cheap. This environmental time bomb is a principal reason that the PolyMet project makes any economic sense at all, that according to Edison Investment, one of PolyMet’s stock touts.

  5. Submitted by Steve Timmer on 09/01/2019 - 09:53 am.

    I refer to Jess Richards’ 2014 comment to me about a Glencore guaranty in the commentary. PolyMet VP Brad Moore made a similar remark to me in 2013 at an event at the Canadian Consulate that you can read about here:

    • Submitted by Rod Loper on 09/03/2019 - 08:33 am.

      Steve, great job. This article needs to be printed alongside the crap Iron Range legislators are sending . See today’s op-ed in the Strib.

      • Submitted by Steve Timmer on 09/03/2019 - 01:32 pm.

        Just for good order’s sake, Rod is referring to this:

        “We have incredibly thorough environmental permitting processes and strong environmental protections in place.”

        The environmental permitting process was, indeed, “incredible” in the actual meaning of the word.

        The mining companies have a Greek chorus of people such as the representative from Aurora who are either bullshitting — in the academic sense of that word — or fibbing.

        • Submitted by Steve Timmer on 09/04/2019 - 10:07 am.

          Twitter comments were made yesterday (9/3) with a link to Rep. Lislegard’s campaign finance report. It’s revelatory. Just follow this link:

          Just select the “Reports and Data” tab and then select the 2018 year-end report. Virtually all contributors: individual, lobbyist, and PAC contributions are mining related, or mining construction related, including multiple ones from PolyMet officials. Oh, there’s a contribution from Ryan Winkler’s AG committee, too.

  6. Submitted by Steve Timmer on 09/03/2019 - 01:37 pm.

    The DNR refuses to have second thoughts about the PolyMet/Glencore upstream tailings dam in view of the catastrophic dam failure in Brazil. “It’s different,” the DNR says. But according to the New York Times:

    “There are a total of 87 upstream dams throughout Brazil, and all but four have the same safety rating as the collapsed structure — or worse — according to government records.”

    The Vale dam was hardly an outlier.

  7. Submitted by Julie Stroeve on 09/09/2019 - 04:15 pm.

    I expect to heed history to educate us and Governor Walz and MPCA on the expansion of extraction mining in and around the Boundary Waters. There’s no publication of the requirements of PolyMet and its Chilean parent company to guarantee clean-up of the spill that will occur. There no publication of the requirements of PolyMet and its Chilean parent company to foot the costs of said cleanup. MPCA is here to serve the citizens of Minnesota — not the other way around or to serve corporate interests. This is the time to protect Minnesota’s environment. There are way too many private failure with social rescue examples to allow this to go ahead without extraordinary contractual requirements.

  8. Submitted by Julie Stroeve on 10/05/2019 - 01:20 pm.

    good points here. as most of us are pointing out, private profits and taxpayer cleanup is one of the most frightening things about this process. Almanac on TPT did an in-depth, on location look at the proposed mining and the community’s response. no one can point to no-spill mining as a model for PolyMet. it’s almost a certainty that the BWCA and its rivers will be toxified. we need guarantees from the owner(s) that it won’t declare bankruptcy and leave the state with a 500-year toxic cleanup bill.

  9. Submitted by Steve Timmer on 10/30/2019 - 09:06 am.

    I wrote a story at LeftMN that discusses the siting decision described by the governor in his interview with Walker Orenstein.

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