March 6, 2018 VIA HAND DELIVERY AND US MAIL
Commissioner Tom Landwehr
MN Department of Natural Resources
Division of Lands and Minerals
ATTN: PolyMet NorthMet Proposal
500 Lafayette Road, Box 45
St. Paul, MN 55155-4045
Re: NorthMet Draft Permit to Mine Comments and Objections
Dear Commissioner Landwehr,
Duluth for Clean Water submits these comments and objections to the issuance of a permit to mine to PolyMet Mining Co. for the proposed NorthMet project. Duluth for Clean Water submitted comments objecting to the draft dam safety permits in October. As the permits overlap, we incorporate by reference our comments to the draft dam safety permits to the extent applicable. Additionally, Duluth for Clean Water supports the Petition for a Contested Case Hearing submitted by Minnesota Center for Environmental Advocacy on February 28, 2018, as indicated by the over 1200 signatures delivered by hand on August 16, 2017, and which remain current on our website.
Duluth for Clean Water is a Minnesota nonprofit based in Duluth, with volunteers and members around the Duluth area. Our mission is to promote a safe and healthy future for the St. Louis River Watershed, Lake Superior, and the communities who reside thereon. We have participated in the administrative processes concerning the NorthMet Mine proposal by submitting comments, retaining expert consulting services, and attending and speaking at public hearings. Our members live downstream from the proposed PolyMet operation. We drink water from, eat fish from, and rely fully upon the St. Louis River and Lake Superior for our future.
The position of Duluth for Clean Water is that the NorthMet draft permit to mine reflects numerous failures, especially with regard to downstream communities, and should be denied. Our comments and objections are below.
1. Report shows the NorthMet draft permits are based on outdated precipitation data.
A just-released report shows that PolyMet Inc. NorthMet application does not account for current precipitation and snowpack data, including updated climate change impact expectations, thereby significantly understating the risks of failure and pollution.
In the February 2018 report entitled “Risk Analysis of Probable Maximum Flood and Climate Change at the PolyMet Flotation Tailings Basin”, Dr. Tom Myers, PhD (Hydrology), finds as follows:
“Polymet has not considered the effect that climate change could have on PMP that could affect the PolyMet flotation tailings basin. Instead of 38 inches in 72 hours running into the basin, the total could actually be closer to 68 inches. This extra amount includes snow melt that would result from a 100-year snowpack on the tailings basin.
“The water level in the basin would increase very rapidly. This would lead to rapid change in hydrostatic pressure and seepage through the impoundment. PolyMet has not analyzed dam stability for such a rapid change.”
“The PMP (probable maximum precipitation) with global warming significantly increases the chance of dam failure, either by overtopping, piping or foundation failure. PolyMet has not analyzed these potential risks.”
In other words, PolyMet did not plan or account for climate change impacts in its project design, nor does it accurately account for precipitation events and snowmelt. This, to us, is an astounding revelation, and one that indicates negligence in the application and an unacceptable risk to Minnesota, especially downstream communities. The NorthMet permit as drafted should be rejected on this basis alone.
The Myers report also further confirms that the proposed upstream design for the NorthMet tailings impoundment is the least safe of three traditional methods available. Raising the dam in multiple stages would create failure surfaces between construction layers in addition to adding substantial pressure to its foundation, a taconite tailings impoundment designed and constructed in the 1950s. Large flood flows would increase the pressure this outdated and unsafe design would need to contain.
2. The draft permit fails to meet new United Nations Environment Programme recommendations, including against high risk tailings dam construction.
A recent United Nations Environment Programme report entitled “Mine Tailings Storage: Safety is no Accident” (November, 2017) finds that, since 2014, there have been seven internationally significant mining dam failures, and that planning for an uncertain climate future must now be an essential part of project review.
The report recommends that:
“The approach to tailings storage facilities must place safety first by making environmental and human safety a priority in management actions and on-the-ground operations. Regulators, industry and communities should adopt a shared zero-failure objective to tailings storage facilities where ‘safety attributes should be evaluated separately from economic considerations, and cost should not be the determining factor’ (Mount Polley expert panel, 2015, p. 125)”
To prevent tailings dam failures: “Avoid dam construction methods known to be high risk,” and “require detailed and ongoing evaluations of potential failure modes, residual risks and perpetual management costs of tailings storage facilities.”
The PolyMet proposal fails to meet the UNEP recommendations on both accounts. For the NorthMet application to be updated to meet the recommendations, a fundamental change in the way tailings are produced, reused, and stored would be required.
3. Downstream communities have not been consulted on inundation analyses and emergency response planning.
Lack of direct emergency response planning and consultation with the Fond du Lac Reservation, Cloquet, Carlton, Duluth, and all downstream communities leaves the communities of St. Louis River basin unprepared to deal with a mine waste disaster. With 28% of tailings dams failing nationally according to the US Forest Service, downstream citizens and communities bear an undue risk.
According to independent consultant and mining engineer Jim Kuipers,
“It is our professional opinion that the ultimate determination of acceptability of risk, if a wet tailings approach such as the NorthMet TSF is proposed, should lie with the public members whose lives would be at risk in the event of a catastrophic breach. NorthMet’s analysis shows that the proposed TSF represents significant risk of loss of life in the event, however unlikely, of a catastrophic failure. For that reason, we recommend that the inundation analysis together with the proposed emergency response plan be presented to both the responding regulatory agencies but also to the potentially affected public, through a very intentional process to engage and take their opinions wholly into account, prior to approval of the dam safety permit. The DNR otherwise would be making a decision to put those persons at risk without their input or potentially even their knowledge.”
Downstream communities have not been so consulted, an unconscionable deficiency in light of the risk and magnitude of the proposed project. We object to the draft permit on the basis of the lack of direct and intentional consultation with downstream communities.
4. Cumulative human health impacts have not been assessed.
Heavy metals are neurotoxins that affect brain development. Pregnant and nursing mothers, infants, and young children would be most impacted by exposure to these metals. Mine waste, especially from nonferrous hardrock mining, poses a significant human health threat downstream. The NorthMet application process has ignored calls for a Health Impact Assessment. The failure to ascertain the cumulative impact of this new-to-Minnesota type of mining proposal represents a fundamental failure in the process, especially with regard to downstream communities. We object to the draft permit on the basis of the lack of a health impact assessment.
5. The proposed Financial Assurances are inadequate for planned closure and treatment; The proposed general insurance is inadequate for unplanned spills and failures.
Minnesota law requires that mining operations provide funds up front to cover closure and long-term treatment costs if a permit to mine is issued. The costs of closure and treatment in the first year of operation for the NorthMet project have been estimated to be be $544 million, yet the draft permit to mine would allow PolyMet to put up only 14% of this amount, an insufficient amount to protect Minnesotans.
Furthermore, downstream communities and property owners would be financially unprotected from unplanned spills and failures. Minnesota law requires that mine operators for this type of project must prove they have adequate liability insurance to compensate downstream persons who might be damaged from mining operation. As drafted, the permit to mine does not require PolyMet to determine liability amounts to downstream owners until a year after tailings are deposited.
And, the $10 million of liability insurance required in the permits as drafted is inadequate to cover unexpected spills and failures, especially in light of the costs of the Mt. Polley mine disaster in British Columbia, already in the $100 million range. Furthermore, information about providers of such insurance has not been provided to downstream communities for evaluation.
Simply put, PolyMet has not been required to estimate the costs to downstream communities in the event of a failure, and the coverage amounts reflected in the draft permit are clearly inadequate. We object to the draft permit as placing Minnesota taxpayers, especially downstream communities, at undue and unexplained financial risk.
6. The draft permit ignores the findings of the Mt. Polley Independent Review Panel.
The PolyMet proposal uses an outdated tailings basin design comparable to the design that failed in 2014 at Mount Polley in British Columbia. The PolyMet and Mt. Polley designs share two key commonalities: above-ground wet tailings storage on an unstable foundation, and an upstream dam design.
While the proposed PolyMet dam would have a slope less steep than the Mount Polley dam, the overall height of the PolyMet dam would be almost twice as high at 252 feet. The Mount Polley dam failure was not attributed to the steepness of the slope, but an unstable foundation. The PolyMet dam would be built on unstable taconite tailings on top of a wetland. With these commonalities, a Mt. Polley-type catastrophe could happen in Minnesota.
Ignoring the findings from the Mt. Polley review panel, which recommend dry stack tailings on a stable foundation, represents a failure of the draft permits. We object to the draft permit to mine on this basis.
7. Downstream communities have not provided consent.
Fond du Lac, Duluth, Cloquet, and many other communities are downstream of the NorthMet proposal. These communities have not consented to the PolyMet proposal and some have vocally objected. Nor have these communities been adequately informed of cumulative health impacts, inundation analyses, and emergency response planning, making consent to the proposal effectively impossible. We object to the draft NorthMet permits on the basis of the lack of consent of downstream communities.
8. The draft permit violates Minnesota law requiring maintenance free closure.
Minnesota Administrative Rule 6132.3200 requires that “the mining area shall be closed so that it is stable, free of hazards, minimizes hydrologic impacts, minimizes the release of substances that adversely impact other natural resources, and is maintenance free.” Closure is defined as “the process of terminating and completing final steps in reclaiming any specific portion of a mining operation. Closure begins when, as prescribed in the permit to mine, there will be no renewed use or activity by the permittee.”
The NorthMet draft permits anticipate cessation of activity at year 30. Under Minnesota law, then,“closure” for the NorthMet project would be at that time. The draft permits also anticipate water treatment long past mine closure that are sustained for centuries or longer.
The draft NorthMet permit to mine therefore violates Minnesota law by maintaining hydrologic impacts, release of substances, and continuing to pose potential hazards beyond proposed closure date. We object to the draft permit on the basis of the facial violation of Minnesota law.
If this permit is issued, Minnesotans can anticipate -- based on the significant history of promises and non-performance by applicants for similar permits around the US -- violations, exceedances, and regular permit revision applications at best, and at worst, outright tailings basin or dam failure at unimaginable cost to our communities.
If permitted, this project would put Minnesotans at substantial -- and insufficiently accounted for -- risk. Someone in Minnesota must be accountable for the multi-generational impact copper sulfide mining would have in the St. Louis and Lake Superior watersheds. We urge that you deny the NorthMet permit to mine.