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

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.

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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