Mining issues to be aired in contested case

REGIONAL—Ely-based Northeastern Minnesotans for Wilderness, or NMW, is challenging a May 31 determination by the Department of Natural Resources that existing mining rules in Minnesota are sufficient to protect the Boundary Waters Canoe Area Wilderness from water pollution from proposed copper-nickel mining in the headwaters of the Rainy River watershed.
The group, which opposes a plan by Twin Metals to mine sulfide-based ore several miles upstream of the wilderness boundary, will pursue a contested case hearing before an administrative law judge, during which they hope to show that the DNR’s determination was flawed.
The contested case process will allow all parties involved to present evidence, including documents and witness testimony, supporting their claims. An administrative law judge will review the evidence and issue findings of fact and possible recommendations.
As part of a 2020 lawsuit testing the protections offered under the Minnesota Environmental Rights Act, or MERA, NMW succeeded in getting the DNR to re-examine its mining rules and determine whether they were adequate to protect the BWCAW from the effects of the Twin Metals’ mine. The group also won the right to require a contested case if it disagreed with the DNR’s determination on the adequacy of the state’s mining rules.
The DNR subsequently determined that its rules are inadequate to protect the Boundary Waters from noise and light pollution from a mine but found that its rules—which require no degradation of wilderness waters— were adequate to protect the BWCAW.
In its original lawsuit, NMW had argued that the rule in question could not protect the BWCAW from impacts from acid rock drainage resulting from the removal of sulfide-based ores within those portions of the Rainy River watershed located upstream of the 1.1-million-acre wilderness area. The group, citing scientific studies that suggested downstream water pollution would be inevitable and difficult to mitigate, appeared to have hoped that the DNR would reach a similar conclusion and ultimately agree to prohibit non-ferrous, sulfide-based mining from taking place within the Rainy River headwaters.
But the DNR determined otherwise, concluding that the existing rules, “in conjunction with other existing state and federal environmental protection laws, is adequate to protect the BWCAW from potential water, air, and other impacts from nonferrous mining.”
The DNR noted that the state already applies the most protective water quality standard, known as Prohibited Outstanding Resource Value Water, to the Boundary Waters. According to the DNR, that designation “essentially prohibits issuance of a water quality permit that would have any measurable impact on waters of the BWCAW.”
NMW says it supports that policy objective but argues that while the DNR’s rules may appear strict on paper, there’s no way to really enforce them once a mine is built within the watershed.
According to a statement, NMW says its case is not about whether the DNR should revise its mine siting rules to make a new, stricter policy, but about the need to revise the existing rules to actually guarantee implementation of the policies that have already been enacted by Congress and the Minnesota Legislature.
“DNR’s decision that existing water quality standards are sufficiently protective of the Boundary Waters assumes that nothing will ever go wrong— that no human errors will take place and that unforeseen natural problems, whether resulting from climate change or the ordinary vagaries of weather and geography, will never occur,” notes NMW in a press statement. “It assumes that there will be no engineering, mechanical, or technical failures.  Unfortunately, toxic sulfide-ore copper mining always pollutes water. One hundred percent of sulfide-ore copper mines have resulted in surface or groundwater pollution.”