REGIONAL— The Department of Natural Resources has determined that the state’s non-ferrous mine siting rule is largely protective of the environment, but needs updating to better address the potential for mining-related noise and light impacts on the Boundary Waters Canoe Area Wilderness.
The decision, issued late Wednesday, May 31, came in response to a court order issued in a case brought by Ely-based Northeastern Minnesotans for Wilderness back in 2020. In a 74-page decision, the DNR determined that the non-ferrous mining rule, known as Minn. R 6132.2000, should be reopened for updating to better address concerns about noise and light impacts to the wilderness.
NMW, in its original lawsuit, brought under the Minnesota Environmental Rights Act, 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 with the Rainy River headwaters.
But the DNR determined otherwise, concluding that the existing rule, “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 a measurable impact on waters of the BWCAW.”
The agency notes, in addition, that the wilderness is also afforded the highest level of air quality protection in federal law.
NMW officials expressed some satisfaction with the DNR’s decision. “It’s encouraging that the DNR recognizes that the existing rules, promulgated 30 years ago, are no longer adequate to protect the Boundary Waters,” said Ingrid Lyons, Executive Director of the Campaign to Save the Boundary Waters, of which NMW is a part. “We will work through the process to ensure that subsequent proceedings properly address all of the priceless natural resources at risk from pollution, impairment, and destruction if sulfide-ore copper mining were allowed in the Boundary Waters watershed.”
In reaching its conclusions, the DNR reports it reviewed more than 4,000 comments on the issue, many of which questioned the state’s overall policy regarding non-ferrous mining and the level of risk the should be allowed under that policy. But the DNR, in a public statement, said its response was intended to address the legal issues raised in the NMW lawsuit rather than render a policy decision.
“Any decision to modify a fundamental state policy of this nature belongs in front of the Legislature, rather than an executive agency,” noted the agency in a press statement. “We recognize that the Boundary Waters Canoe Area Wilderness is an extraordinary natural treasure and deeply important to our identity as a state,” said DNR Commissioner Sarah Strommen. “We received many comments that raised questions about the State’s policy and risk tolerance around nonferrous mining. We believe these broader policy questions are more appropriately addressed by Minnesota’s Legislature.”
The DNR is now recommending that the Legislature consider whether the following nonferrous mining practices in the watershed are compatible with protection of the BWCAW:
Above ground storage or disposal of waste tailings.
Permanent above ground storage of reactive waste rock.
Heap leaching.
Smelting.
Becky Rom, national chair of the Campaign to Save the Boundary Waters, said she was encouraged by the DNR’s call on the Legislature to examine the risks associated with these various mining methods and technologies. “We think that is an indication to the Legislature to take a good hard look and really engage on that,” she said. “Hopefully, we’ll have more legislators touring the area. Ideally, it could translate into expanded rulemaking or new legislation.”
Meanwhile, Rom said the Campaign’s attorneys are reviewing the decision in depth to better understand how the DNR interpreted the data the plaintiffs provided related to water and air impacts. Under a stipulated agreement as part of the overall case, NMW has the right to a contested case hearing if they wish to challenge any part of the DNR’s determination.
Twin Metals Minnesota, which intervened in the case, has a similar right. Rom said a contested case is one of the options under consideration but that no decision has been made.