Protect water or advance green energy

Update Jan. 26, 2023: Biden bans mining in the Boundary Waters Canoe Area Wilderness.

SEAGULL LAKE, Minn. — The thorny process of unearthing some of the world’s most sought-after minerals is unfolding in Minnesota, which has some of the nation’s largest deposits of nickel, cobalt and other metals used in electric cars and other green technologies.

Two international mining giants have been trying for years to open mines in the state’s northeast corner. A third company recently signed an agreement with Tesla to supply nickel for the carmaker’s electric batteries. All three face a maze of state and federal permitting requirements, as well as fierce opposition from those who say toxins from the mines could irreparably harm waterways in the state known for 10,000 lakes.

The U.S. has only a small percentage of the world’s essential mineral deposits, so for decades has relied on supplies from China, the Democratic Republic of Congo, Canada and other countries. But as the need for these minerals grows, and international supply chains become less stable, the push for homegrown minerals has increased. The problem is so serious that in March, President Joe Biden invoked the Defense Production Act to try to bolster American production. The administration is expected to send specific recommendations to Congress in November.

The challenges the administration faces are apparent in Minnesota, which is home to 95% of the nation’s known nickel reserves, 88% of the cobalt, 75% of the platinum group metals and 34% of the copper, according to Twin Metals Minnesota, whose owner is the Chilean mining conglomerate Antofagasta. Twin Metals has been trying since 2012 to renew the federal leases it needs to begin work in the Superior National Forest, home to 20% of the freshwater in the National Forest System. Within the forest is the Boundary Waters Canoe Area Wilderness, a labyrinth of more than 1,000 lakes with water so pure that canoeists simply dip their water bottles in and drink.

The PolyMet mine, whose majority owner is Switzerland-based Glencore, would be built on private land about 15 miles southeast of the Boundary Waters, near the headwaters of the St. Louis River, the largest tributary to Lake Superior. Lake Superior is home to 10% of the world’s freshwater and is one of the best preserved of the Great Lakes.

The company that hopes to supply Tesla’s nickel, Talon Metals, has a joint venture with Rio Tinto, the world’s second-largest metals and mining corporation. Talon aims to mine at a site around 50 miles west of Duluth. Talon is listed on the Toronto stock exchange but is headquartered in the British Virgin Islands, while Rio Tinto is an Anglo-Australian company.

All three projects plan to use sulfide-ore mining, which is common in arid parts of the country, but has never been attempted in water-rich Minnesota, whose standards for nonferrous mining—any kind of mining that isn’t for iron– haven’t been updated since 1993.

Tom Landwehr, former commissioner of the Minnesota Department of Natural Resources, or DNR, says the state isn’t prepared for what’s to come.

“Our science has grown so dramatically in 30 years, but these standards are stuck pre-internet,” said Landwehr, who shepherded the initial permitting for the Polymet mine but later led one of the groups opposing Polymet and Twin Metals. “The precious metals, sulfides and sulfates, it’s a totally different thing.”

In 2020 Landwehr’s organization, the Campaign to Save the Boundary Waters, sued the DNR in a Ramsey County District Court, saying the agency needed to determine whether its 30-year-old mining rules are adequate to protect the Boundary Waters. The agency agreed, and the judge sent the rules back to the DNR for review.

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One of the challenges state and federal regulators face is protecting waterways from the vast amounts of waste this type of mining produces.

PolyMet would extract 32,000 tons of rock per day to obtain 225 million tons of ore over 20 years. More than 99% of that rock would be discarded as waste.

Twin Metals would uncover 180 million tons of ore by unearthing 20,000 tons per day over its projected 25-year operating cycle with a similarly high wasterock percentage.

At this volume, the mines would dwarf the nation’s only operating nickel mine — in Michigan’s Upper Peninsula — which unearths 2,000 tons per day using sulfide-ore mining.

Mixed into the waste left by sulfide-ore mines are sulfate-bearing rocks. When large amounts of this wasterock is dug up and exposed to air and water, it generates sulfuric acid. The movement of this highly acidic water — called acid mine drainage — leeches heavy metals from rock and can be “highly toxic when mixed with groundwater, surface water and soil,” according to the U.S. Environmental Protection Agency.

Minnesota physicians say sulfide mining has the “potential to release” six of the 10 toxins that the World Health Organization lists as most harmful to human health: mercury, lead, arsenic, particulate air pollution, asbestos and cadmium.

Another byproduct of sulfide-ore mining is methylmercury, created when sulfates and mercury settle into wetlands around rivers and lakes. Prolonged exposure to even trace amounts of methylmercury can cause brain damage in babies, toddlers and infants in the womb.

Storing the vast amounts of waste in a safe way is challenging–and poses risk regardless of the storage design.

Environmentalists have criticized PolyMet’s plans because the company wants to store the waste from its open pit mine in a type of above-ground tailings dam that Brazil banned in 2019, after a tailings basin collapsed and killed hundreds of people. Such dams are also banned in Chile and Peru.

Twin Metals plans to do its mining underground. After it brings its tailings to the surface it will dry them and then backfill about half of them underground. The other half will be stacked above ground.

The dry stack method is generally recognized as safer, because the tailings can’t flow out of a dam in the event of a failure, according to David Chambers, a geophysicist who heads the Center for Science in Public Participation in Bozeman, Montana. But it still requires strict regulatory scrutiny, he cautioned. “Even if the tailings are dry, the shell can still fail,” he said in an email to IRW.

Both mining companies promise to protect Minnesota’s waterways while bringing much needed jobs back to a part of the state where traditional iron ore mining once produced high-paying jobs.

Proposed Minnesota mines adjacent to water resources

The two proposed Minnesota mines are positioned near or within the Superior National Forest, home to 20% of the freshwater in the national forest system. The Polymet project is located near the headwaters of the St. Louis River, which flows downstream to the Fond du Lac Band of Lake Superior Chippewa’s Reservation. In May 2022, the Fond du Lac Band became the first-ever sovereign American Indian tribe to use its authority as a “downstream state” under the Clean Water Act to oppose a federal permit.

“We are mining in the place where the federal government and the state government have both encouraged mining to take place over the decades,” said Julie Padilla, Twin Metals’ chief regulatory officer. “If we can’t protect the Boundary Waters, which we know we can, but if for whatever reason, the agencies believe that what we’ve put in place is not effective for that, then we shouldn’t get permitted.”

PolyMet says it will actually improve water quality by treating legacy issues from previous iron-ore mining at the site. “Even rainwater that falls on our site will have higher concentrations of mercury than what we discharge,” said Bruce Richardson, the company’s vice president, corporate communications and external affairs.

The job of sorting out these claims falls to the state and federal regulators who are tasked with issuing dozens of permits for each project. The permitting process has frustrated mining supporters as well as opponents. At a U.S. Senate hearing in March, John Barrasso (R-Wyoming) held up a chart that stretched from wall to wall of the hearing room to demonstrate the chutes-and-ladder nature of the process. The average permitting timeline in the U.S. is 10 years, he said, compared with two to three years in Australia and Canada.

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TWIN METALS MINNESOTA

The permitting challenge facing Twin Metals is especially complex, because its mining site includes two federal land leases. That means the company needs buy-in from the U.S. Forest Service, the Department of the Interior and the Bureau of Land Management. Disputes over the two federal leases have dragged on for more than 50 years, leaving Twin Metals without any of the 34 permits it potentially needs to begin mining.

The mining site is nine miles southeast of Ely, a town of roughly 3,200 about 16 miles south of the Canadian border. The community splits between those who embrace growing tourism from the Boundary Waters and those who mourn the loss of mining jobs and the high pay and dignity attached to them.

The federal leases were initially granted in 1966 to the International Nickel Company Inc., which never built a mine. After the initial lease period, the leases were subject to renewal every 10 years. INCO sold the leases to Duluth Metals, the predecessor of Twin Metals Minnesota. Antofagasta, the world’s largest copper producer, became a partner in the project in 2010. By 2015, it owned 100% of the company.

One of the biggest roadblocks Twin Metals faced early on was from the Forest Service. Its director at the time, Tom Tidwell, had serious reservations about the project.

On Dec. 14, 2016, Tidwell sent a 21-page letter to the head of the Bureau of Land Management, saying the project posed a risk that was “unacceptable…for a regionally untested copper-nickel sulfide-ore mine within the same watershed as the Boundary Waters” and that it might cause “irreparable harm to this unique, iconic and irreplaceable wilderness.”

The next day, the Obama administration announced that it would not renew the leases and commissioned a two-year environmental study that could have resulted in a 20-year ban on any copper and nickel mining in the area.

After Donald Trump was elected president, Antofagasta lobbied hard to bring the project back.

In January 2017, Ivanka Trump and Jared Kushner rented a stately D.C. mansion from Andrónico Luksic Craig, the head of the Luksic Group, which includes Antofagasta PLC. The Luksics are among the world’s 100 richest families.

Within a week of Trump’s inauguration, officials at the Department of the Interior were exchanging emails about reversing the Obama Administration’s decision, according to documents obtained through a public records request by independent filmmaker Louis V. Galdieri, who posts the records online as they are released. Within months, Antofagasta representatives met with the U.S. officials at the American embassy in Chile and in Washington.

In 2018 the Trump administration reinstated the leases and canceled the environmental study Obama had commissioned. A draft of the nearly completed study was made public in 2020, but all 60 pages were completely redacted.

The leases whiplashed again after Biden was elected. His administration recommissioned the environmental study and then canceled the leases in January 2022. Twin Metals announced it would challenge that decision saying the decision was “not about the law; this is a political action.”

Last month, the Forest Service released the long-awaited draft environmental study, which bolsters the administration’s goal of withdrawing the area from sulfide-ore mineral exploration and mining for 20 years.

“The primary risk from accidents and failures is the potential impact to water quality by emitting metals, sulfate, acid drainage, suspended solids and other chemicals,” the report said. It added that existing evidence shows that this type of mining “no matter how it is conducted” risks contaminating the environment due to “the potential failure over time” of the technology used to mitigate pollution.

If the Bureau of Land Management accepts the Forest Service recommendation, Secretary of the Interior Deb Haaland is expected to make a final decision on the 20-year moratorium by the end of the year. Haaland publicly opposes mining near the Boundary Waters.

At the Senate committee hearing in March, Padilla, the Twin Metals chief regulatory officer, said “political back and forth” of the regulatory process demonstrates that “the United States is no longer considered to have a stable regulatory climate.”

“Attempting to shut the door on copper-nickel mining in northeast Minnesota is completely contradictory to the Biden administration’s goals on combating climate change; on strengthening domestic supply chains and national security; and on creating American jobs,” Twin Metals’ spokesperson Kathy Graul said in an email to IRW.

The potential prize for Twin Metals is enormous.

The Duluth Complex, where its mine would be located, is considered one of the largest undeveloped copper-nickel resources in the world, and Twin Metals estimates it has at least 200 years of resource potential, according to Padilla. The company has already invested $550 million in the project and estimates it will have spent $1.7 billion before the mine opens.

Today, there’s little activity at the site, just an above-ground clearing that’s about the size of a plot for a modest single-family home. A few core sampling shafts stick out of the ground like oversized green crayons.

Padilla says that because the mine is underground, the project won’t destroy large swaths of land. Approximately 1,000 acres of forest will be cleared, which the company says is about 80-85% smaller than the footprint for a similar open-pit mine.

But the project’s footprint will be huge, about 30,000 acres, according to the Sierra Club, which says it will be like “an underground city.” For a reference point, Minnesota’s capital city St. Paul is just under 36,000 acres.

Padilla said electric vehicles would carry miners more than a mile down a declined tunnel, where they would extract the rock by blasting and drilling, then crush it underground to minimize dust and air pollution. After that, the minerals would be transferred to the surface on a conveyor belt, where they would be concentrated and dried.

“We basically French press them and blow dry them,” said Padilla. The minerals would be removed and some of the waste would be placed in a dry stack that she said “will blend into the topography.” The remaining waste would eventually be moved back underground.

On a tour of the project site, Padilla looked at the grassy forest floor. “None of this will change,” she said. “It’s all going to be happening under there. This all remains the same.”

At the March hearing, Sen. Martin Heinrich, D-New Mexico, asked Paul Ziemkiewicz, director of the West Virginia Water Research Institute and an expert on acid mine drainage, about the risk the mine’s dry stack tailings plan might pose.

“By definition it will be wet enough to generate acid mine drainage,” said Ziemkiewicz. He noted that unless the entire area were covered in plastic, acid mine drainage would be unavoidable.

Padilla reminded the senators that every project carries risks. But there are laws to mitigate those risks, she said, comparing complying with mining regulations with choosing to obey seat belt laws.

Twin Metals’ opponents are cautiously optimistic that Biden’s recent cancellation of the leases will put a permanent stop to the mine. But they’re also realistic.

“It’s certainly possible that a future administration could flip-flop once again,” said Pete Marshall, communications director at Friends of the Boundary Waters Wilderness, which opposes the project.

POLYMET

PolyMet’s project, called NorthMet, sits like a postage stamp on private land inside the Superior National Forest. The company got the land in 2018, after it exchanged 6,700 acres it owned outside the forest for 6,600 acres within the forest.

PolyMet is 72% owned by Glencore, a Swiss-based commodities trading and mining company that the Reuters news agency once described as the “biggest company you’ve never heard of.” It was founded by the late Marc Rich, a godfather of commodities trading who spent years on the FBI’s most wanted list until he was issued a controversial pardon by President Bill Clinton. Its second-biggest stockholder is its recently retired CEO, Ivan Glasenberg, who in 2017 was awarded the Order of Friendship by Russian President Vladmir Putin.

A PolyMet spokesman said that while Glencore provides financial and technical support for the project, local PolyMet executives make the day-to-day decisions.

The mine would be built in the eastern Iron Range, where Minnesota’s once-booming iron ore and taconite industry began to slow in the 1980s. Residents in the nearby town of Babbitt, about two hours north of Duluth, tend to support the project. Mining isn’t just a job in Babbitt, it’s part of the culture, and many residents want to see those jobs brought back. On average, mining jobs pay $90,000 per year, more than double the regional average of $43,000.

PolyMet has promised to create 360 jobs over the mine’s 20-year lifespan. But the fine print on the company’s final environmental impact statement says “as many as 338 of the 360” jobs could go to people living within the three counties surrounding the mine site. It also acknowledges that increased “worker productivity spurred by technological change” could reduce the number of jobs.

The mine faces stiff opposition from one of its neighbors, the Fond du Lac Band of Lake Superior Chippewa, whose reservation’s northern border runs along the St. Louis River, downstream from the mine site. The Band says any toxins released by the mine could move into the St. Louis River watershed and spill onto lands where the tribe has treaty rights to hunt, fish and gather. The tribe is particularly dependent on the wild rice that grows in wetlands and lakes in the area.

Federal law now gives more than 80 tribal nations the right to be treated as states when it comes to setting their own environmental standards for water quality assessment. These standards must be upheld under federal law in the same way any state’s standards must be met.

The tribe conducted a public health impact assessment in partnership with the Minnesota Department of Health that reflected the role wild rice waters play in the tribe’s physical, mental, cultural and community health. Wild rice is particularly susceptible to elevated sulfate and sulfide levels, one of the main concerns with mining, and the tribe wanted the existing sulfate standards to be enforced.

“A factor that contributes to mercury is sulfate. Methylation is sulfate,” said Nancy Schuldt, a water ecologist who has worked with the Band for more than two decades.

“If we have the right to hunt, fish and gather, but the rice is gone and you can’t eat the fish, those treaty rights have been abrogated.” — Nancy Schuldt, water ecologist for the Fond du Lac Band.

A 2011 Department of Health study revealed 10% of newborns in the Lake Superior basin already have elevated blood-mercury levels, with some surpassing the EPA’s toxicity levels. In addition to the wild rice water concerns, the tribe depends on fish at subsistence levels, putting tribal children at greater risk. “If we have the right to hunt, fish and gather, but the rice is gone and you can’t eat the fish, those treaty rights have been abrogated,” Schuldt said. “That’s at the heart of our involvement.”

Because the Fond du Lac is considered a state under federal environmental law, the EPA and the Army Corps of Engineers were obligated to inform the tribe if its waters and wetlands might be impacted by PolyMet.

In October 2018, the tribal chairman sent a letter to the Army Corps of Engineers and to the EPA office in Chicago, asking to be notified of any concerning information related to the project.

The tribe received no response, Schuldt said. So the tribal chairman sent another letter in January 2019.

Again, no response.

The chairman sent a third letter in February 2019.

“Crickets,” said Schuldt. “They just blew it off.”

In March 2019, the Army Corps of Engineers issued PolyMet its wetlands permit. Six months later, the Fond du Lac and a coalition of environmental groups sued the EPA and Army Corps of Engineers in federal court.

The court ruled that the agencies needed to inform the tribe of any potential impacts of the PolyMet project on its water quality and suspended the permit. The Fond du Lac Band is the first-ever sovereign tribe to successfully challenge a federal permit under the Clean Water Act as a downstream state.

In early May 2022, the EPA under the Biden administration recommended that the Army Corps of Engineers rescind the permit in its entirety, in part because the level of mercury that could be discharged from the project was unknown.

“As the NorthMet project is currently designed there are no conditions that EPA can provide to the corps that would ensure the discharges from the permit would comply with the Fond du Lac Band’s water quality requirements for its waters,” the EPA said.

The decision could have impacts beyond Minnesota.

One estimate found that most of the country’s copper, nickel, cobalt and lithium reserves are within 35 miles of Native American reservations. And the Biden administration has issued an executive order stating that it will uphold the country’s commitments to tribal nations.

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While wrangling continued over the federal permits, Minnesota was issuing the state permits the project needed, often with a lot of controversy. In 2016, groups representing more than 30,000 Minnesota physicians asked the Minnesota Environmental Quality Board to require a public health impact assessment as part of the environmental review process for sulfide-ore mines. But six years later, that still isn’t a requirement.

When IRW asked why the state doesn’t require health impact assessments, the DNR said in an email that it addresses potential impacts to public health “on a project-by-project basis during the scoping process of Environmental Review” and that mining companies are required by their permits to operate within “established standards or limitations that protect public health.”

The DNR approved one of the PolyMet’s most controversial permits–the dam safety permit—in 2018. It allows Polymet to store 225 million tons of waste rock in a 60-year-old tailings dam that was once used to store ore tailings from an old taconite mine. The dam is built on compressed peat, glacial till and fractured bedrock, according to drawings the company included in its permit application.

The project’s opponents insist the dam is too risky. They point to the 2014 collapse of a similar dam in British Columbia, where almost 25 tons of toxic waste from a copper and gold mine swept into the area’s pristine waters and salmon refuge.

An upstream tailings dam in this part of Minnesota is especially fraught, they say, given the silt-like soil in the water-rich environment.

“It’s like building on mud,” said Chambers, the Montana geophysicist. “What we found with these upstream dams is basically with them–everything has to work. And if something doesn’t work right — you’ve got a real problem.”

PolyMet says the dam has been reviewed by outside experts.

“I don’t think you can find a tailings dam anywhere in the U.S. and maybe even the world that has had more scrutiny than PolyMet’s,” company spokesman Richardson told IRW.

“Hundreds of tailings dams with upstream construction exist in the U.S. — many of them much larger than PolyMet’s,” Richardson said. “I am not aware of any major tailings dam failures in the U.S. in decades, a testament to the design, engineering, construction, regulations, monitoring and management of these facilities.”

Tom Landwehr was the DNR’s commissioner when PolyMet received its dam safety permit. He declined to answer questions about the PolyMet permitting process. But he spoke in general terms about Minnesota’s lack of preparedness to regulate sulfide-ore mines.

He said that career staff members at the state agencies find it almost impossible to update regulations because of political pressure from powerful pro-mining lawmakers. He accused the state legislature of “impeding science-based decision making” and threatening to cut DNR funding if the agency tries to tighten its rules.

“It’s huge political pressure to not update the rules, because whenever you update the rules in almost all cases, it will be more challenging to permit a project,” said Landwehr, who retired from the Campaign to Save the Boundary Waters last year.

When asked to respond to Landwehr’s comments, a DNR spokesperson told IRW in an email that the agency is not “unduly influenced by any special interest” and “has not received legislative pressure to either update or not update the existing nonferrous rules.”

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While the DNR was dealing with the dam safety permit in 2018, the Minnesota Pollution Control Agency was preparing to issue a key wastewater permit. In January 2018, it sent a draft of the permit to the U.S. Environmental Protection Agency, which is responsible for making sure state agencies abide by the Clean Water Act.

Former EPA scientist Kevin Pierard, a water quality expert in the agency’s Chicago office, didn’t think the permit complied with the Clean Water Act. According to documents that emerged later, he and his EPA colleagues calculated that it allowed for pollution at concentrations more than 1,000 times the limit of water quality standards. They also believed the permit was worded in a way that it would make it challenging to hold PolyMet accountable for any toxins it released.

But when Pollution Control held public hearings about the permit, the EPA’s concerns were not available to the public. According to court documents and testimony given by the individuals involved, Pollution Control officials persuaded the EPA to delay releasing its comments until after the public comment period closed. That meant the EPA comments did not appear in the public record.

According to the court documents, Pierard “felt so strongly” about having the comments heard that he insisted on reading seven pages out loud “word for word” on a conference call with Pollution Control and EPA staffers.

Pollution Control issued the final permit in December 2018. An EPA investigation of the incident found that the final permit didn’t fully address 12 of the EPA’s 29 issues.

Pierard’s comments weren’t made public until June 2019, after environmental groups sued to obtain them.

IRW asked the EPA why it hadn’t issued a formal objection to the permit. An agency spokesperson responded that “EPA chose to review the PolyMet draft permit and make recommendations to the State to encourage MPCA to include important conditions to protect water quality.”

Pollution Control says it addressed the EPA’s concerns throughout the permitting process.

“… The EPA ultimately concluded that the permit was legally enforceable,” Pollution Control said in an email. “The MPCA remains committed to ensuring that its permit processes and decision making are transparent and provide a robust opportunity for public participation.”

Still, PolyMet’s wastewater permit remains in limbo.

After environmental groups and the Fond du Lac Band challenged the permit, the Minnesota Court of Appeals sent the permit back to Pollution Control in January, saying the agency hadn’t fully considered whether seepage from the tailings dam might contaminate groundwater in lakes and streams.

The court found that Pollution Control hadn’t violated permitting procedures by asking the EPA to withhold written comments, but environmental groups and the Fond du Lac Band contested that decision with the support of the union that represents EPA employees in the region. In April 2022, the Minnesota Supreme Court agreed to reexamine it. A hearing date has yet to be set.

The Big Picture

While federal and state agencies grapple with the challenge of regulating the mining of Minnesota’s essential minerals, the pressure to open mines in other states is escalating. “The average new mining permit in the U.S. takes 12 years,” Sen. Lisa Murkowski, R-Alaska, said last year at a discussion hosted by the Bipartisan Policy Center. “If we can’t do better as a nation, it won’t get us very far ahead.”

The Biden administration included $100 million for developing critical minerals in its infrastructure bill, and in February it outlined 11 fundamental principles for mining reform. They emphasize the importance of establishing “strong responsible mining standards” to protect the environment “during exploration, discovery, active mining, reclamation, and post-closure.” But they also stress the need to build facilities to process the minerals once they are extracted.

Processing and refining are such dirty parts of the supply chain that they’ve traditionally been outsourced to countries where environmental regulations are more lax. Mike Maten, executive director of government affairs and electric vehicle strategy for General Motors’ public policy team, said these processes in the middle need to be thoughtfully discussed.

For example, nickel must be refined, processed and combined with other compounds into a cathode active material — what Maten refers to as “goop” — before it can be manufactured into a battery for an electric vehicle. The process for making this “goop” is energy intensive and not environmentally friendly. The U.S. currently has no nickel processing facilities.

Both Twin Metals and PolyMet say the minerals they extract in Minnesota will likely be exported for processing — and there’s no guarantee that they’ll be returned to the U.S. China currently controls 35% of global nickel processing and dominates worldwide processing of other critical minerals.

“There are really big conversations for this country to have as we move forward on,” said Padilla, the Twin Metals chief regulatory officer. “Traditionally we have decided to put things like processing facilities in lower income and minority communities. Are we going to fairly manage some of these difficult issues or are we going to just continue to turn our backs on that responsibility?”