Twin Metals and PolyMet: Why is one mine objectionable and not the other?

As is true of most white Twin Citians, and Minnesotans in general, really, I first learned about copper sulfide mining risks in Minnesota through the lens of protecting the Boundary Waters Canoe Area Wilderness, a place that I have enjoyed many times. That was, and is, an important objective for environmentalists and outdoor enthusiasts. Well, and for me, too.

The more I studied the issue, though, the more I came to appreciate that the Boundary Waters  and the Rainy River watershed, which would be affected by the Twin Metals mine proposal, were only part of the story. The rest of the story — the St. Louis River watershed, Lake Superior, and the Lake Superior Chippewa Bands — was receiving short shrift by many people, including policymakers, regulators, the media, and the public, including some environmentalists, in what seemed like a devil-take-the-hindmost approach.

The proposed PolyMet open pit sulfide mine near Hoyt Lakes has received the necessary permits from the Minnesota Department of Natural Resources to begin mining on the headwaters of the St. Louis River, a major tributary to Lake Superior. It is only because of the dogged efforts of the Ojibwe Bands and environmental organizations such as the Minnesota Center for Environmental Advocacy, WaterLegacy, and the Friends of the Boundary Waters Wilderness that litigation in the Minnesota Court of Appeals has stayed these permits for the mine and sent the case back to the DNR for a “contested case” proceeding. PolyMet and the DNR have taken the Court of Appeals decision to the Minnesota Supreme Court to reinstate the permits, skipping the contested case; oral arguments will take place there in coming months.

If the appeals by the Minnesota DNR and PolyMet succeed, major obstacles to building the mine will be removed. If the Ojibwe and the environmental organizations prevail, the permits will be sent back to the DNR and the Office of Administrative Hearings for the contested case.

What would happen in a contested case

In a contested case, the DNR would have to produce evidence and stand for examination under oath about its decision to issue the permits. Moreover, the parties opposing the permits would have a chance to make the case to an administrative law judge, who is not part of the DNR, as to why digging the mine and storing the tailings is improvident and dangerous. Importantly, this would all be done publicly, with a record created and testimony under oath, with the opportunity of the parties to employ the great engine of truth: cross examination.

This isn’t a novel idea. Contested case proceedings were requested of the DNR before the permits were issued, but PolyMet opposed them; the requests were denied. There are good reasons to have this debate in the open, and they go back to the very beginning of consideration of this project: the “scoping” of the environmental impact statement.

Scoping an environmental impact statement is really asking the question: What do we need to worry about? In PolyMet’s case, the EIS was scoped by the DNR and the Army Corps of Engineers. Any good advocate will tell you that it is much easier to get the answer you want when you get to ask the question.

The final EIS executive summary says that the Bois Forte, Grand Portage, and Fond du Lac Ojibwe Bands participated in the EIS, but they didn’t participate in the scoping phase of it.

Absent from the scope of the PolyMet EIS was a consideration of the effect of a catastrophic failure of the deferred-maintenance bankrupt LTV tailings dam that PolyMet wants to use. We know that three “upstream” tailings dams of the type at the LTV site have failed spectacularly in the last half-a-dozen years: two in Brazil, and one in British Columbia. (There are more, really, but these are the big ones.)

Consultants to PolyMet and the DNR did design or consulting work on two of the three dams that failed. If there were a contested case hearing, the public would learn more about the risks inherent in this type of mine tailings storage.

Ojibwe Bands complained about limited scope

When they did get a seat at the table, the Ojibwe Bands’ scientists complained vigorously about the limited scope of the proposed EIS, and its failure to address in a direct the way the consequences, environmental and financial, of a catastrophic tailings dam failure, especially to the Bands.

Another consultant to the DNR offered the opinion that it was a question of when, not if, the dam would fail, but the DNR dismissed it.

The use of the bankrupt LTV crushing plant and tailings dam and basin was critical to the economics of the PolyMet proposal, according to Edison Investment, an advisor to PolyMet.

Under rules of the Minnesota Environmental Quality Board, an EIS must ordinarily consider alternatives with less environmental impact. But the DNR and Corps said this in their scoping document:

An alternative processing plant site may not be feasible or achievable in the time frame of the project.

That’s a remarkably facile statement.

When you look at the destruction of persons, property, the environment, and livelihoods in places like British Columbia and Brazil when tailings dams have failed, you can understand why the DNR and PolyMet are loath to bring it up.

Potential questions

Questions for a contested case hearing might include:

• “Why did you ignore other sites and methods of tailing storage when the rules of the Minnesota Environmental Quality Board say you must?” (Other methods of tailings storage do exist: safer designs of tailings dams and “dry stacking” of tailings.)
• “Why is the timeline so important, when it forecloses the examination of safer ways to do things?”
• “Why did you ignore the opinion of your own consultant who said the dam was likely to fail?”

If the PolyMet tailings dam failed, the Embarrass River would probably look a lot like this photo of Hazeltine Creek in British Columbia after the dam collapse at Mount Polley in 2014. Miles of and millions of cubic yards of toxic heavy metals (including mercury) and sulfides sludge that would leech into the St. Louis River watershed for what? A century, a millennium?

Well, this dam is different, said the DNR’s commissioner recently, well after the EIS was scoped and then completed a few of years later, and without explaining, at least very convincingly, why it’s different. The Court of Appeals obviously had misgivings when it stayed the dam permits and sent them back to the DNR.

We shouldn’t accept the commissioner’s remarks in lieu of a record made under oath and subject to cross examination. Especially for the riskiest mining project ever permitted in the state.

The St. Louis River is already classified as an impaired stream, which means there is supposed to be a plan to clean it up, not a risk of making it a lot dirtier.

The St. Louis River runs through the Fond du Lac reservation and feeds important wild rice – manoomin – water for the Ojibwe. The fish in the river, which for the most part can’t be eaten very often (and by Ojibwe children not at all), because of the methyl mercury in them, and the wild rice beds are part of the patrimony of the Ojibwe, guaranteed to them by a federal treaty, the Treaty of LaPointe, made in 1854. The manoomin beds are already in decline because of sulfate pollution.

The PolyMet sacrifice zone extends to the City of Duluth and Lake Superior, too. People need to know that whether or not the tailings dam fails, the PolyMet mine and tailings basin would discharge pollutants that impair wild rice and increase mercury contamination of fish. The Bands and environmental organizations have stressed the certainty of mercury and sulfate pollution as well as the potential for catastrophic ruin that would result from the PolyMet mine.

Imagine what would happen if a similar threat hung over an important and yes, sacred, asset of white people?

The difference in the public’s reaction

We don’t have to imagine; we just have to observe the difference in the reaction of the public to PolyMet and to Twin Metals. It’s remarkable. A new, separate organization was created to raise money just for the Boundary Waters, and it hired the former commissioner of the DNR, the person who signed the PolyMet permits that are now in litigation, to resist the Twin Metals proposal. (I should mention that the Friends of the BWCAW is one organization with “Boundary Waters” in its name that has fought PolyMet all along with its theme: Two Mines. Two Watersheds. One Threat, and it has big paddles in the water in the PolyMet litigation.)

Editorialists wax poetic about the Boundary Waters, saying “Not this Mine; Not this Location,” and receive awards, while remaining virtually silent about PolyMet. Parts of the two projects are 12 miles apart, and they are subject to the same Clean Water Act and the same Clear Air Act.

We’ll move heaven and earth to stop one, but not the other. Why?

The Minnesota Supreme Court has a chance to promote environmental justice in the question of copper sulfide mining in Minnesota; let’s hope the court rises to the occasion.

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

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