WaterLegacy Petition for PolyMet Supplemental Environmental Impact Statement
On July 18, 2018, WaterLegacy formally petitioned the Minnesota Department of Natural Resources (DNR), the U.S. Army Corps of Engineers (Army Corps) and the U.S. Forest Service (Forest Service) for a Supplemental EIS for the PolyMet sulfide mine project.
WaterLegacy requested a Supplemental EIS for the PolyMet Project on the following grounds:
- PolyMet’s 2018 Technical Report and a new U.S. Department of Justice investigation of Glencore for money-laundering and corruption undermine the feasibility of the project described in the PolyMet FEIS and its ability to finance reclamation and closure.
- New studies are needed to analyze the environmental effects of massive project expansions proposed in PolyMet’s 2018 Technical Report. PolyMet’s 2018 Report revealed that the PolyMet mine project, at the size reviewed in the Final EIS, would have twice the capital costs previously predicted, and would reduce the after tax internal rate of return by two-thirds – from 30.6% to 10.3% if the hydrometallurgical process is included. PolyMet’s new mining scenarios to restore investor profit could triple the amount of ore processed.
- PolyMet’s recent plan for tailings disposal in abandoned mine pits is a feasible alternative that should have been analyzed before.
- Since the Final EIS, PolyMet had reduced dam safety below safety factors, greatly increased water appropriations, eliminated mine site water pollution treatment, and completely changed its plan to compensate for wetlands destruction. None of these changes have been studied in environmental review. The project conditions on which the DNR relied to find the PolyMet Final EIS “adequate” are no longer valid.
Paula Maccabee, an attorney for WaterLegacy, says critical details have changed so much since what was supposed to be the final review that a supplemental environmental impact statement is needed, particularly if PolyMet wants to expand the mine.
WaterLegacy also cites Swiss commodities giant Glencore, the largest investor in PolyMet, which was recently ordered to give the U.S. Justice Department documents relating to compliance with corruption and money laundering rules stemming from activities in Africa and Venezuela.
Previously, on June 29, 2017, WaterLegacy had asked the U.S. Army Corps of Engineers to require a supplemental EIS to review these project changes and to hold a hearing so members of the public could be heard.
Paula Maccabee, an attorney for WaterLegacy, said the plans changed between March 2016, when the DNR approved the final environmental impact statement, and when PolyMet started submitting permit applications in recent months. She called it a “bait-and-switch” to cut up-front costs. She also said the changes increase the risks of a catastrophic dam failure, pollution spills and damage to wetlands.
“The project keeps changing and these are not changes for the better,” Maccabee said.
PolyMet Final Environmental Impact Statement State & Federal Actions
On November 6, 2015, the Minnesota Department of Natural Resources (DNR) released the PolyMet Final Environmental Impact Statement (EIS). The DNR determined that the PolyMet Final EIS was “adequate” on March 3, 2016. The U.S. Army Corps of Engineers has yet to determine whether or not the PolyMet Final EIS is adequate.
On December 14, 2015, WaterLegacy submitted to the Minnesota Department of Natural Resources, Minnesota Governor Mark Dayton, the Minnesota Pollution Control Agency, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency, a packet with over 200 pages of WaterLegacy technical comments, six expert reports and 36 new exhibits opposing a federal Clean Water Act permit for the PolyMet NorthMet project and demonstrating with clear evidence that the PolyMet Final Environmental Impact Statement is inadequate and must be rejected.
WaterLegacy’s comments on the PolyMet NorthMet Final EIS demonstrate that the environmental review is inadequate
- The Final EIS is highly reliant on unsubstantiated assumptions in PolyMet’s modeling.
- The Final EIS provides a wholly inadequate evaluation of alternatives.
- The Final EIS fails to analyze indirect and cumulative impacts of the Project on wetlands and wetlands functions.
- The Final EIS fails to consider cumulative impacts of PolyMet expansions, air emissions and water discharge and other foreseeable mining projects.
- The Final EIS fails to analyze the effects of the project on mercury methylation, contamination of fish and resulting impacts to human health and environmental justice.
WaterLegacy’s comments to the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency demonstrate how the PolyMet plan fails to comply with the Clean Water Act
- The PolyMet project is not the least environmentally damaging alternative, and better technologies to protect wetlands, reduce seepage and avoid catastrophic tailings dam failure were not even considered.
- The PolyMet project would result in ecologically significant increases in mercury contamination of fish affecting the Partridge, Embarrass and St. Louis Rivers, particularly increasing health risks for the developing fetus, infants, children, and people who fish for subsistence.
- Pollution from the PolyMet mine and tailings sites would violate water quality standards and result in significant degradation of water quality.
- Direct and secondary effects of the PolyMet mine would cumulatively destroy or degrade up to 26.9 % of the high value wetlands and peatlands in the Partridge River watershed.
- PolyMet has no plan to compensate for most wetlands of the harm to wetlands that would result from the project and its meager plans for mitigation don’t meet legal requirements.
While the public has been focused in recent weeks on the adequacy of the Final Environmental Impact Statement, Maccabee, who serves as legal counsel for Water Legacy, said PolyMet’s failure to modify its project to limit its environmental impacts generally disqualifies its proposal from federal permitting, regardless of whatever decision the state’s Department of Natural Resources ultimately makes on the FEIS.
“We have shown that the PolyMet project doesn’t comply with Clean Water Act Section 404 regulations,” said Maccabee in a press statement issued Monday. “It would violate the law protecting wetlands, downstream fish and downstream human health to give this sulfide mine project a permit.”
WaterLegacy’s Minnesota Federal Court Lawsuit to Block PolyMet Land Exchange as “Sweetheart Deal” Violating Public Lands Law
U.S. Forest Service Draft PolyMet Land Exchange Decision (2015)
On November 17, 2015, the U.S. Forest Service published a Draft Record of Decision supporting the exchange of 6,650 acres of Superior National Forest land for private lands for the PolyMet NorthMet sulfide mine could be constructed.
On January 4, 2016, WaterLegacy submitted to the U.S. Forest Service a 133-page document stating our legal objections to the federal land exchange, with expert reports and exhibits. The U.S. Forest Service approved the PolyMet Land Exchange relying on the PolyMet Final EIS in January 2017.
Additional Background Information
WaterLegacy Expert Reports on the PolyMet Final EIS, Clean Water Act Permit & Land Exchange (2015)
“The potential near-doubling of methylmercury export from methylating peatlands receiving an additional sulfate load from the proposed PolyMet development would be reflected in methylmercury concentrations in the upper tributaries, and the Embarrass and Partridge Rivers, given the role these wetlands play in supplying water to these streams and rivers. Increased methylmercury would also be expected to impact the upper St Louis River, given the direct hydrological connection and known methods of methylmercury transport.”
“Most clearly inconsistent with applicable regulations and policy, the failure of in-kind replacement and the loss of difficult-to-replace aquatic resources are proposed for a mitigation plan that has both avoided the requisite watershed approach to wetlands compensation and proposed the majority of compensation outside the Lake Superior Basin. This proposal is impermissible and no agency discretion stretches far enough to allow this result.”
“The adverse effects of methylmercury depend on timing and amount of exposure. Methylmercury is a strong toxin that influences enzymes, cell membrane function, causes oxidative stress, lipid peroxidation and mitochondria dysfunction, affects amino acid transport and cellular migration in the developing brain. Exposure in utero can cause motor disturbances, impaired vision, dysesthesia, and tremors. Even lower level exposure can result in lower intelligence, poor concentration, poor memory, speech and language disorders, and decrease in visual spatial skills in children exposed to methylmercury in utero. Fetuses, infants, and young children are four to five times more sensitive to the adverse effects of methylmercury exposure than adults.”
“In sum, the FEIS incompletely addresses particulate air pollution. The analysis provided in the FEIS is inadequate to reasonably address the health risks of the proposed mine – risks to the mineworkers and to people living in the surrounding communities. A Health Impact Assessment from a qualified independent evaluator is necessary to clarify the risks of this proposal.”
“The FEIS concludes that 90% of the tailings leakage that remains as groundwater will be captured and contained within a containment barrier surrounding much of the tailings pile and that 100% of the surficial seepage from the tailings will be collected and contained. . .The analytical support for these conclusions is based on assumptions of performance that are not justified or supported by data. Lacking any demonstration of the validity of the assumptions leaves the conclusions questionable.
The long-‐term performance of the Category 1 waste rock stockpile is dependent on a water collection system composed of a cutoff wall surrounding the 526-‐acre 240-‐foot tall pile, and a drainage system within the cutoff wall. . . However, the proposed drainage system is unlikely to work as anticipated.”
“Data from the existing AMAX three-year tailing field study calls into question assumptions in the FEIS that tailings seepage would not adversely affect water quality or violate Class 2B standards to protect aquatic life.”
PolyMet Supplemental Draft EIS
The PolyMet Supplemental EIS was released to the public in November 2013. WaterLegacy concluded:
[T]he SDEIS is inadequate and the project is likely to pose significant adverse impacts to the environment, to human health, to environmental justice and to tribal rights and resources. The SDEIS is data poor, and its modeled outcomes are determined by unsubstantiated and unreasonable assumptions, rather than by empirical information and field experience.
The PolyMet proposed action described in the SDEIS also fails to satisfy Clean Water Act Section 404 requirements. The SDEIS does not demonstrate that the project is the least environmentally damaging practicable alternative or that its impacts on aquatic resources of national importance will be mitigated. The proposed Land Exchange serves a narrow private interest, rather than the public interest, and contradicts both federal policy and federal fiduciary responsibilities to protect tribal resources.
READ Expert Materials Submitted with WaterLegacy Comments:
PolyMet Draft EIS
The PolyMet Draft EIS was released for public comment in October 2009. WaterLegacy filed comments on February 10, 2010, and the U.S. Environmental Protection Agency rated the PolyMet Draft EIS as “Inadequate” on February 18, 2010.
Exhibits to WaterLegacy comments on the PolyMet Final EIS and Clean Water Act Section 404 concerns, on the draft PolyMet Land Exchange, on the PolyMet Supplemental Draft EIS are available by request to Paula Maccabee, WaterLegacy Advocacy Director and Legal Counsel, email@example.com.