No Review at Milepost 7; Why Minnesota needs greater transparency from DNR on mining decisions

March 17, 2022, JT Haines, MCEA Duluth Office

One of the lesser-understood dynamics about mining permitting in Minnesota is that once a permit is granted by the Minnesota Department of Natural Resources (DNR), the public is rarely involved again. There is no set time frame for DNR to review permits, and only DNR determines when changes are important enough to warrant a formal permit amendment. Too often the public is left in the dark, even when changes to a mine facility could impact public safety.

Below is the story of a recent proposal to expand the famous “Milepost 7” tailings basin in Beaver Bay. This story illustrates the tremendous discretion DNR has under Minnesota’s current mining laws, how the agency chooses to exercise that discretion, and why we need more transparency moving forward. 

An expansion proposal at Milepost 7.

Many in the Duluth area remember a harrowing period in the 1970s when they had to get drinking water from the local fire station. As it happened, a nearby company was dumping mining tailings containing asbestos-like particles directly into Lake Superior. That company was “Reserve Mining,” and a now-famous environmental case by the same name forced the company to stop dumping in the lake and move its contaminated mining waste three miles up the hill into a tailings basin (a sort of lake for pollution) called “Milepost 7.”*

Recently, Milepost 7’s new owner, Northshore Mining (owned by Cliffs), proposed a significant expansion of that facility. As reported by the Duluth News, the “basin holds 40-years worth of tailings behind dams and on top of a 2,100-acre footprint. An expansion project planned by Cliffs would expand that footprint by 850 acres — a 40% increase in the basin’s surface area.” Without proper review and controls, an expansion like this would raise the risk of releases of pollutants downstream into Lake Superior, once again threatening the people of the North Shore.

No Notice From DNR: MCEA learns of proposal through a federal notice, petitions for review.

Incredibly, our state agencies never told the public about Northshore’s plans for this major expansion. Instead, we learned about it when our staff came across a federal notice published by the US Army Corps of Engineers. But for that filing, we may have never known about the significant new proposal.

Given its significance, we, alongside local partners and members of the public, petitioned DNR to prepare an updated “Environmental Assessment Worksheet” (EAW) to help understand the impacts of the proposal. Although state and federal agencies prepared environmental review documents on the original Milepost 7 basin, these documents are now 40 years old, and do not account for changes to the landscape or climate change, and were based on dam designs that DNR has allowed Northshore to change over the years.

Updated review should have been an easy ask. 

DNR denies review, but the public attention results in changes to the proposal and new information in the record.

On February 7, DNR denied the EAW petition, detailing its decision in an 82-page single-spaced findings document with 127 attached exhibits. In contrast to an EAW, this filing was sent only to the petitioners and was not shared with the public.

Here are some key things we’ve learned through the exchange with DNR:

• First and foremost, the larger expansion plan has been shelved. The company set aside the larger expansion in favor of a more incremental approach, and, for now, will only build smaller extensions of the dams rather than allow the tailings to flow into a significantly larger new area. This scaling back of the proposal allows DNR to claim that no new review is needed. Since DNR used the reduction in size to justify that claim, it appears that this means that DNR would not now argue that the old review from the 1970s would have covered the larger expansion. While this is “good news,” this does not significantly change the way DNR approves changes to mines without public notice. Northshore could revive its plan for a larger expansion at any time, and the public might again receive no notice. Unless there are changes to DNR’s approach, it will once again fall to the public and advocates like MCEA to ensure accountability.
• DNR allowed Northshore to abandon the dam design that was approved in the 1970s — a safer design — in the 1990s.  DNR allowed Northshore to start using a more risky design that incorporates the tailings themselves to support the dam. 
• Although Northshore updated its facility emergency action plan, that update (which we were not allowed to review) is now more than a decade old. 
• One of the tailing basin’s interior dams is failing. And generally, DNR has allowed Northshore to operate with key dam monitoring instrumentation out of order, without requiring prompt repair.
• DNR has never required Northshore to obtain a dam safety permit for the Milepost 7 dams, despite having the authority to do so. MCEA’s legal team plans to make this demand to DNR in the coming weeks.

We must keep watching. 

The public’s involvement in the Milepost 7 issue has clearly had a positive impact on DNR’s decision-making, and also on the amount of information that is now available about this facility that otherwise would not have been. That said, significant questions remain: 

• Why does DNR allow Northshore to operate without dam safety permits required for other dams in the state?
• What would have happened if the U.S. Army Corps had not published a notice about this project? Was DNR intending to let Northshore proceed with the major new expansion without involving the public at all?
• And perhaps most significantly: Why aren’t DNR’s dam permits and permits to mine subject to periodic review and renewal like other state permits? Shouldn’t these permits come up for automatic review by the agency, subject to public notice and comment?

We should not have to probe state agencies for information that it clearly benefits the public to know. DNR should be addressing these important questions as a matter of ordinary course.

The stakes are high.

While some important adjustments have been made in DNR’s approach to Milepost 7 as a result of public attention, the agency’s overall approach to an industry with one of the biggest pollution footprints in the country still falls short of the mark. A better process would involve clear standards requiring notification of the public of significant changes to mining facilities, and regular permit renewal proceedings. 

As outside mining interests continue to seek to exploit Minnesota’s resources, we must hold DNR to the standards for transparency and accountability that it claims to hold. Milepost 7 is a good illustration of the stakes: If that facility fails one day, we are right back to where we were in the 70s, with pollution rushing directly into Lake Superior and drinking water once again impaired.
 

JT Haines is the Northeastern Minnesota Program Director for MCEA, based in Duluth.
* MCEA’s first attorney, Chuck Dayton, was significantly involved in the Reserve Mining litigation.