Land Swap: PolyMet mine has the Forest Service over a barrel and environmental lawyers are calling shenanigans

Ray Allard and Jennifer Martin-Romme
Zenith News

Mining is the future of Minnesota, bursting with “world-leading technology” and “an unstoppable work ethic!” Just ask the mining industry.


A 16-page advertorial—paid advertising that resembles independent reporting—ran May 21 in Twin Cities Business magazine and the Duluth News Tribune.


The glossy insert assures us that the days of “blackened men wielding shovels” are over. The mining industry of today is an environmentally-friendly Santa Claus, prepared to rain down high-paying jobs, most of which, judging by the photographs, will be filled by women in hardhats. The ad does not explain why the four women on the cover—all of whom work in management or public relations—have any need to be decked out in safety apparel.


Nor does the insert disclose that PolyMet, the proposed copper mine near Hoyt Lakes, only expects to hire about 180 local people for 20-year, non-union jobs.


The ad doesn’t mention that, for example, Cliffs Natural Resources, named as one of the leaders in this new, good-for-the-planet mining, settled a 2010 Clean Water Act violation at their Dunka plant with a $58,000 fine. Cliffs also owned the LTV tailings basin, where PolyMet plans to deposit its own tailings (a slurry of waste rock and water). The LTV basin has been leaking for years.


The insert also doesn’t tell you that on January 9, the United States Forest Service approved a public-for-private land exchange with PolyMet, without raising a single objection on the merits of the transaction.

 
Since finalizing its Environmental Impact Statement in November 2015, PolyMet spent last year applying for the 20-plus permits it will need to build three open pit mines on 16,700 acres at the old LTV site.

There are water use permits and dam safety permits, wetlands permits, and endangered species permits, and burning permits—all of which are fairly useless as long as PolyMet doesn’t actually own the land it wants to mine.


The infrastructure is in place, and at question right now is that PolyMet needs over 6,000 acres of sensitive forestland. The land exchange is controversial for two reasons—the value of the land and its environmental impact.


PolyMet owns the “subsurface mineral leases”—rights to the copper, nickel, cobalt, and other precious metals underground—but the Forest Service owns the surface—broadly, the rights to occupy, alter, and enjoy the land.

 

With a mortgage from the Iron Range Resources and Rehabilitation Board, PolyMet purchased most of the 6,722.5 non-contiguous acres it wants to swap for 6,650 contiguous acres in the Superior National Forest—valued at the bargain-basement price of $550 per acre.


If you’re thinking there ought to be a law against that, there kind of is. The Weeks Act of 1911 allows the federal government to acquire national forestland and requires them to protect it. The law explicitly prohibits the sale of federal forestland for mining—sale, not swap.


The Federal Land Policy and Management Act of 1976 requires that federal lands be sold or exchanged only for land of equal value and only for a purpose consistent with the public interest.

 

“The exchange needs to be of equal value, not just [equal] area,” says Aaron Klemz with the Minnesota Center for Environmental Advocacy, which, along with the Center for Biological Diversity and the Isaac Walton League, sued the Forest Service in March, arguing that the exchange illegally undervalues the land.

 

“It would be like saying that the parking lot that used to be where Target Field is located in Minneapolis is valued as a parking lot as opposed to a stadium.”


A 2015 appraisal by Compass Land Consultants assessed the forestland based on its value for investment in timber, even though the land is going to be used for mining. The average value of mining land in northeastern Minnesota is $1,645 per acre.


Why would the Forest Service—who declined comment due to the litigation—agree to such an abysmal deal? Because PolyMet has the Forest Service over a barrel.


State law gives mineral leaseholders access to their minerals, even without the surface owner’s consent. If a surface owner refuses, Minn. Stat. 93.05 says “the holder of the mineral lease may, in the name of the State of Minnesota, institute proceedings to condemn the same.”


In its Record of Decision approving the land exchange, the Forest Service admits they do not approve of PolyMet’s plans, but they’re consenting to the land swap anyway because otherwise PolyMet will sue, and the courts in Minnesota have tended to favor the mining company:

PolyMet intends to exercise private mineral rights that were reserved when lands were conveyed to the United States and has proposed the development of a surface mine. This land was purchased by the USFS, for National Forest purposes, under the authority of the Weeks Act. The USFS has taken the position that the mineral rights that were reserved do not include the right to surface mine as proposed by PolyMet. [emphasis mine] PolyMet disagrees with the USFS position and argues that the mineral rights it seeks to utilize provide for access to the minerals by any mining method...This conflict raises the possibility of litigation that has no certain outcome and could impact tens of thousands of acres of other National Forest System lands conveyed under the same deeds.


“So, rather than go to court to determine whether or not they have the right to prohibit an open pit mine, [the Forest Service] decided to trade the land away,” says Kevin Lee, staff attorney at the Minnesota Center for Environmental Advocacy.

 

“This land will require $600 million of capital costs to develop a mine that will produce hundreds of millions of dollars in revenue for the mining company, but they’re getting the property itself for somewhere around $4 million. The government is trading away public land for pennies on the dollar, which benefits only one party here—the mining company...Taxpayers are essentially subsidizing that transaction.”


It “gives PolyMet a sweetheart deal in order to build a copper-nickel mine,” says Paula Maccabee, attorney for WaterLegacy, an environmental group opposed to “non-ferrous” (or “sulfide”) mining.

 

Maccabee filed suit against the Forest Service within three weeks of its decision to approve the land swap. She also filed a federal injunction to “make sure the land is not clear-cut or paved over while the judge is evaluating our case and making a decision.


“No sooner had we filed our motion for preliminary injunction than PolyMet asked to intervene, which they’re entitled to do under the law. Then they filed a motion to dismiss...Basically, PolyMet is saying because the land is remote and most people don’t go there, they should have the right to do whatever they want, without a court review. That’s their motion to dismiss. We opposed that and identified specific people, who are WaterLegacy members, who have been on the land, enjoyed its aesthetics, been downstream of the site.”


“Forty percent of the river systems in the Western United States are polluted by sulfide mines,” says Klemz. “This is the kind of thing you want to avoid in Minnesota...Minnesotans aren’t familiar with the risks that this poses to water. It’s not the same ore.”


Copper mining produces significantly more waste rock than taconite mining. PolyMet will process 73,000 tons of rock per day—225 million tons of ore and 300 million tons of waste rock over the life of the project, leaving behind a permanent waste rock pile spanning 526 acres.

 

PolyMet claims the water that leaves their mine will be as safe as milk. Opponents claim there is no possible way to decontaminate the water. Both are wrong.


Sulfate is a byproduct of mining ore. Taconite mining produces sulfate, too, but copper mining produces much more of it because copper involves mining such low-grade ore—the reason there’s so much more waste rock.  


Sulfate is not terribly dangerous by itself. In high doses, it causes gastrointestinal distress, but that’s not the concern here. PolyMet is situated at the top of the St. Louis River watershed, which is sensitive to sulfate. When combined in the airless sediments with carbon, mercury, and sulfate-reducing bacteria, the mercury “methylates,” which allows it to be absorbed by cellular tissues.


This process is not hypothetical; it is established science, discovered in 1994 by Jeff Jeremiason, a chemist at Gustavus Adolphus College. Subsequent research has further confirmed the role of sulfate in methylation.


PolyMet emphasizes that their mercury discharge will be low, and that’s probably true, but it’s irrelevant. There’s been inorganic mercury in the watershed since the Industrial Revolution (called “legacy mercury”). It’s not good for the environment, but, all by itself, it’s not “bioavailable,” meaning your body can’t absorb it.


Methylmercury is a much greater threat, because it is bioavailable and it accumulates. A young girl who eats fish high in methylmercury will still have it in her system when she grows up and becomes pregnant. The result is that babies along the North Shore are already born with dangerously high levels of mercury in their blood.


Sulfate is the only part of the methylation equation that we’re able to control. There’s no way to get legacy mercury out of the water, and all the other methylation ingredients occur naturally—carbon, the lack of oxygen in the sediments, and sulfate-reducing bacteria (which does not reduce the amount of sulfate; it reduces sulfate chemically—it’s not the solution; it’s part of the problem).

 

Sulfate also occurs naturally, but only at about four to eight milligrams per liter in most of the watershed. Depending on water flow, sulfate levels in the estuary already get as high as 33 milligrams per liter, mostly from taconite mining and wastewater treatment. That’s before undertaking one of the most sulfate-generating human activities on the planet—breaking up low-grade ore.


There are ways to treat wastewater in order to remove sulfate, and PolyMet’s treatment plan is state-of-the-art—a combination of chemical precipitation (introducing a chemical that neutralizes sulfate and causes it to “precipitate,” or drop out of the solution) along with reverse osmosis, which essentially filters the water with electricity and polymer membranes.

 

The company rightly points out that they will be able to clean up the mess left behind at LTV, although that and the mess at Dunka were also failures of state regulation, which does not bode well for the state’s commitment to regulate PolyMet.


Nonetheless, PolyMet’s water treatment plan is unquestionably superb —the best there is—but there’s a catch: Treatment must be maintained indefinitely. If it is ceased, the rain and snow and groundwater coming into contact with those big piles of waste rock, will flush enormous volumes of sulfate straight into the Partridge and Embarrass Rivers, down the watershed and into the estuary.


This is why even PolyMet’s Environmental Impact Statement says pollution mitigation will be necessary for 500 years. Will PolyMet be around in 500 years? Will the State of Minnesota? Who’s going to pay for 500 years of uninterrupted water treatment?


“The Department of Natural Resources has very wide latitude to require whatever types of financial assurances they want,” says Kevin Lee with Minnesota Center for Environmental Advocacy. “You could put cash into a trust fund. You could get an irrevocable letter of credit from a bank. You could buy a surety bond. You could get an insurance policy. There’s any number of these instruments that you can get, so the question is what are those instruments, and how much would they cover the taxpayers in the event that the company goes bankrupt?”

 

PolyMet’s financial assurances haven’t been settled on yet, because that’s part of the permitting process, but the company has proposed a combination of credit letters and surety bonds. “They are also required to estimate what the cleanup costs would be if they go bankrupt. That’s really what assurances are all about.

 

"If the company goes bankrupt for any reason, the state has to take it over, and it becomes the state’s job to clean it up—to put all the waste rock piles somewhere else, deal with them somehow, deal with the pits, to deal with the contaminated water. How much would that cost? The company’s estimate for [water treatment costs at] the height of the mine’s operation (basically in year 11 out of 20 years of operation) is $842 million. That gives some sense of the scale of what kinds of dollar amounts we’re talking about.”


There’s no superhero to swoop in and save us. It’s not our minerals at stake, or our economy. It’s the ability of all Americans to decide collectively how we want to use our public forests. If the land exchange is allowed to proceed, it shifts that decision from the federal government to the state, absolving the company of responsibility and trading our democracy and our health for promises, propaganda, and an unregulated mess that will last centuries.

 

The ad was paid for by the Hibbing Chamber of Commerce, Laurentian Chamber of Commerce, ALLETE/ Minnesota Power, ArcelorMittal, Cliffs Natural Resources, Iron Mining Association, Iron Range Engineering, the Iron Range Tourism Bureau, Mining Minnesota, PolyMet, and the Iron Range Resources and Rehabilitation Board.

 

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