Minnesota Must Stop Ignoring State & Federal Mining Laws

John LaForge

Acid mine drainage from an abandoned gold mining site in Kantishna Mining District, Denali National Park, Alaska
Acid mine drainage from an abandoned gold mining site in Kantishna Mining District, Denali National Park, Alaska

Governor Mark Dayton told the St. Paul Pioneer in October that he supports the PolyMet copper sulfide mining proposal, “But they still have to meet the environmental permitting requirements.” 
The governor’s qualified endorsement of the controversial PolyMet mining plan raises the question of which environmental requirements have to be met.
Chris Knopf, of Friends of the Boundary Waters Wilderness, makes two crucial points in a Nov. 13 counterpoint in the Mpls StarTrib, “How the proposed PolyMet mine project would violate Minnesota regulations.” First, state law requires PolyMet to “permanently prevent substantially all water from moving through or over the mine waste,” after mine closure. But PolyMet’s plan is to leave mine waste in contact with water for hundreds of years. Second, PolyMet’s and the DNR’s own data, based on rock samples from the proposed site, project the amount of toxic heavy metals to be expected in the contaminated water after mine closure. But this research was set aside and ignored, while irrelevant data from a Yukon Territory mine was substituted -- in order to minimize the amount of expected contamination. Tellingly, that mine’s water quality continues to deteriorate, yet state officials have allowed this dubious data switch to go unchallenged. 

PolyMet’s plans, as outlined in its 2016 Final Environmental Impact Statement (FEIS), also appear to violate the federal Clean Water Act. Section 404 governing discharges into US waterways requires mining firms to use the “least environmentally damaging practicable alternative,” but this would mean underground extraction rather than open pits, and “dry stack tailings” of fine particle mine waste rather than PolyMet’s plan to dump slurry into unlined seepage ponds. Dry stacking is far less environmentally damaging since it doesn’t threaten groundwater contamination, but Paula Maccabee, an attorney for WaterLegacy, explains that PolyMet’s chose the cheaper options, not the least damaging, without adequate .

Maccabee submitted 80 pages of expert comment on the FEIS and she noted that the Clean Water Act also requires that PolyMet to make written guarantees regarding if and when company-funded cleanup programs will be conducted to fix unplanned “adverse impacts.”

Financial assurances and long-term guarantees

In October 2015, Governor Dayton said he wanted to hire an independent analysis of the financing behind the PolyMet Mining Corp. and its foreign owner, Glencore of Switzerland. Patrick Condon reported in the StarTribune that Dayton had “concerns” about Glencore whose environmental record was “mixed.” “That’s why I think the financial assurance part would be essential.”

That November Dayton followed up on his concerns, saying that if the giant mine was eventually permitted, Minnesota should demand “a rigorous system of community oversight,” like the one required of Upper Michigan’s Eagle mine which he visited that fall. The StarTribune’s Tony Kennedy reported that Dayton “was impressed by Michigan’s decision to require the [Eagle] mine’s owner to pay $300,000 annually into an independent oversight fund.”

As I reported here earlier, Michigan’s Eagle mine is 100 times smaller than the proposed PolyMet open pit. Dayton’s suggestion that Minnesota “should demand the same as Michigan,” means that PolyMet Mining Corp./Glencore should be required to pony up $30 million annually for independent, long-term ground water and surface water monitoring. If mine promoters like US Representative Rick Nolan, D-MN, are correct to predict that giant, open-pit sulfide deposits can be mined using “technological innovations that can mitigate mining’s environmental footprint” like acid mine drainage, then PolyMet/Glencore must guarantee it up front with legally binding agreements.

PolyMet’s own waste water modeling data initially stated that potential acid mine drainage would be a 500-year-long problem, so the water monitoring guarantee needs to amount to a guaranteed bond of $15 billion in today’s dollars.
Enter Phyllis Kahn, the long-time member of the Minnesota House. Kahn has raised the issue of paying for cleanup after the mine closes or following a pollution disaster. In a Nov. 14 letter, Kahn points out that, historically “throughout the country,” after mine closure or a major mishap “the company goes belly up and the bank or financial institution backing it goes bankrupt.” To protect Minnesota’s water against this financial corruption, Kahn recommends that the state “require a bond issued by a reputable institution like Lloyd’s of London,” noting that the insurer’s refusal to offer a policy “or proposal of an unmeetabe rate” would speak volumes about the likelihood, severity and costs of the mine’s inevitable disasters. 

Credits