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Why a Minnesota environmental group is pushing new legislation based on a bill written by the mining industry in Montana

The measure would put new restrictions on certain waste storage dams for future copper-nickel mines in Minnesota. 

The tailings dam at the Mount Polley copper and gold mine
In 2014, the tailings dam at the Mount Polley copper and gold mine in south-central British Columbia failed, spewing billions gallons of wastewater and toxic mining byproducts into nearby waters.
REUTERS/Cariboo Regional District

 The Legislature this year has not been kind to those who want a tougher regulatory road for copper-nickel mines in northeastern Minnesota.

Most Republicans — and a contingent of DFLers — contend state regulations are strict, if not onerous, and have cheered the jobs that two separate and controversial mine proposals could bring to the Iron Range. Any chatter around changing rules for permitting such mines has gained little traction at the Capitol.

Now, one environmental group is hoping to win skeptics to their side with the help of legislation written by the mining industry in another state: Montana.

State lawmakers there approved a slate of new regulations in 2015 to increase scrutiny of the hardrock mining industry. They were written by the Montana Mining Association and approved overwhelmingly in the Republican-led Legislature after a 2014 disaster at a mine in British Columbia.

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The Minnesota bill introduced Wednesday, Senate File 2873, is modeled on Montana’s measure and would put new restrictions on certain waste storage dams for future copper-nickel mines in Minnesota. It’s sponsored by Sen. Paul Anderson, R-Plymouth, while a companion bill in the House is led by Rep. Steve Sandell, DFL-Woodbury.

State Sen. Paul Anderson
State Sen. Paul Anderson
“Our point was that if we can’t start with a bill that was written by the industry itself, and was passed nearly unanimously in a mining friendly state, what can we do?” said Aaron Klemz, a spokesman for the Minnesota Center for Environmental Advocacy, describing talks with lawmakers. “We’re really trying to break through this log jam that says mining is a subject you can’t talk about at the Legislature in a serious way.”

The MCEA has been a vociferous opponent of the potential PolyMet and Twin Metals mines. The organization’s measure is co-sponsored by Sen. Jim Abeler, R-Anoka, and a handful of DFLers from the Twin Cities metro, including Rep. Anne Claflin, DFL-South St. Paul, who is the vice chairwoman of the House Environment and Natural Resources Finance Division.

It does not appear to have won the initial backing of any lawmakers in northern Minnesota, however, and unlike in Montana, pro-mining groups are skeptical of the need for the legislation.

Spill leads to bill

In 2014, the tailings dam at the Mount Polley copper and gold mine in south-central British Columbia failed, spewing billions gallons of wastewater and toxic mining byproducts into nearby waters. The spill caused extensive cleanup and review, although the mine eventually reopened with a newly reinforced tailings dam.

The breach resonated across the mining world. In a 2015 op-ed for the Montana Mining Association, president Mark Thompson wrote their state “took a long, hard look” at current laws “to prevent a similar disaster from occurring in Montana.”

While Thompson noted Montana had never had a spill of that magnitude, they still proposed “significant engineering and review requirements” for new tailings storage facilities. Their bill eventually passed, and was even lauded by some environmental groups.

Klemz said Minnesota’s bill follows Montana’s closely. In part, it would require new or expanded tailings facilities at nonferrous mines — which includes copper and nickel but not iron ore — to undergo independent review by a panel of three mine engineers and says those tailings dams must adhere to Canadian safety rules. Ongoing inspection and reviews of the waste operations by the independent panel would be mandatory, too.

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Copper-nickel mines are considered to be more environmentally risky than traditional iron ore mining in northern Minnesota because the process can produce heavy metals that leach into water.

Notably, “dry stack” tailings facilities, which remove water from tailings, would be exempt from extra review under the bill. They are exempt in the Montana bill as well. Environmental groups have claimed the dry stack method might be a safer alternative for PolyMet than the tailings basin the mine plans to use. But Minnesota’s Department of Natural Resources said the method was more appropriate in dry regions, and the agency had other concerns with requiring PolyMet to use dry stack technology.

State Rep. Steve Sandell
State Rep. Steve Sandell
“Once exposed to rain or snow, the dry stack becomes wet, so most of the benefits of dry stacking are lost,” says DNR documents tied to PolyMet’s dam safety permits.

While the MCEA bill would not be retroactive, it would apply to PolyMet if the mine asks to expand, Klemz said. The $1 billion project near Hoyt Lakes currently has all permits necessary to begin construction although it is being fought in court by the MCEA and other environmental organizations.

Klemz said the DNR, Minnesota’s main regulator for mining projects, already completed independent review of PolyMet and followed other principles of the MCEA bill while scrutinizing the mine. But Klemz said their measure still creates stricter mining laws as a whole, and makes some DNR practices legal requirements.

“We looked at this bill as a way to extend some of the lessons learned in the PolyMet process,” Klemz said. “Both, some of the things that the DNR was doing that we thought were positive, but also some of the things that we think need to be spelled out in Minnesota laws for any future copper nickel mine proposal.”

In a written statement, DNR assistant commissioner Jess Richards said his agency believes the measure is primarily an effort to initiate a conversation, rather than an attempt to move legislation this year,” given its introduction late in Minnesota’s legislative session. As such, the DNR is not prepared to offer detailed comments on the measure. However, we would observe that the bill, as written, lacks definition in many areas and includes language that would conflict with existing mining and dam safety laws.”

Skeptics unswayed

Despite the bill’s Montana origins and the limited GOP support, backers of copper-nickel mining in Minnesota criticized the proposal or questioned the need for new and tougher rules.

Nancy Norr, chairwoman of Jobs for Minnesotans, a coalition that includes business and labor groups, said she had not reviewed the MCEA bill, but noted the state already has a “very strong regulatory framework for all mining.” Those regulations have gained public trust, she said. “And we don’t need to add more regulation on top of what already exists.”

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PolyMet took roughly 15 years to get full state approval, and the DNR secured a financial assurance package for clean up that could rise as high as $1 billion when the mine is operating. Twin Metals is still awaiting federal approvals and the company has yet to apply for state permits for their mine plan near Ely.

Frank Ongaro, executive director of Mining Minnesota, said his group is always open to a substantive discussion of mining regulations, but he said those should be led by the DNR and include a wide range of people who care about the industry. He also stressed DNR’s independent review of PolyMet. “The bill is unnecessary because the agency already has the authority to do exactly this and they just did it with the best example possible,” he said.

Ongaro further questioned why the mining regulations applied only to new nonferrous mines, instead of all mines in Minnesota. “If you truly cared about public safety and thought there was an issue related to tailings basins  — and I’m not sure there is — then you would want to require this for all tailings basins, whether they’re new ones in one part of a mining industry or ones that are 40 or 50 years old and in another part of the mining industry,” Ongaro said. “If it’s just a piece of legislation to try and stop copper-nickel mining, well then just say so.”

State lawmakers are racing to find a compromise on a two-year spending plan in St. Paul before the Legislature is set to adjourn May 20. Klemz acknowledged a bill filed this late in session was highly unlikely to pass, even with support from legislators in both parties.

But he said the endeavor was still worthwhile, and has a better chance of gaining steam in the Legislature in the future compared to other attempts to implement new mining regulations.

“We’re hopeful that by starting this conversation now with a wide ranging group of suburban moderates as the core, that we can eventually have this conversation state wide and include folks who live downstream in the Duluth area as well as Iron Range delegation,” Klemz said.