We’ve all heard it. Whenever the controversial subject of sulfide mining in Minnesota comes up, someone who favors such mining surely says, “Minnesota has the best mining regulations in the world.” But are Minnesota’s mining regulations really the best when it comes to environmental protection? On closer inspection, the answer is actually "no."
Not only are Minnesota’s mining regulations less protective than Maine or Montana, they aren’t even as protective as Chile and Costa Rica.
In countries where reactive sulfide mines are common — like Costa Rica, El Salvador, and the Philippines — open-pit mining is banned. These countries understand that open-pit mining of acid-generating reactive ores results in perpetual pollution and perpetual costs. In 2017, the state of Maine prohibited open-pit mining and put stringent controls on groundwater pollution from tailings facilities.
But under Minnesota’s mining rules, a sulfide mine can be open-pit, despite the challenge of managing acid-generating sulfide ore in our water-rich environment, and no such groundwater protections exist.
A number of countries — Brazil, Chile, and Peru — now ban, or severely restrict, the building of tailings basin dams using the slurry tailings themselves as the foundation, i.e., “upstream dams.” These countries enacted bans because dams of this design suffer catastrophic failure far more often than other designs. Maine now prohibits wet tailings basins altogether and requires dry tailings storage facilities.
In contrast, Minnesota’s dam safety rules still allow tailings basin dams to be constructed out of tailings slurry, and the use of safer tailings management alternatives is not compelled. Our laws don’t even require a detailed analysis of the consequences of a catastrophic failure.
In 2015, Montana (a “mining-friendly” state) passed a mining industry-supported law that requires a permit applicant to hire an independent review panel of three licensed engineers who are experts in tailings storage facilities. These engineers must oversee the mine throughout its life, from design to closure.
Our mining laws in Minnesota contain no such requirements. While our Department of Natural Resources has occasionally hired outside experts to advise on permitting, nothing requires the DNR to do so, and these experts are not on board for the life of the mine. Instead, the DNR is left to rely on the applicant’s own data and analysis. When a bill modeled on this Montana law was introduced in Minnesota, it failed to even receive a hearing.
In the European Union, member states are directed to “periodically reconsider” mining permit conditions. Under most federal and state environmental laws, including those the Minnesota Pollution Control Agency implements, permits must be renewed every five or 10 years. This renewal process forces the permit holder to prove, subject to public scrutiny, that it complies with its permit and the permit is protective.
But in Minnesota, once the DNR permits a mine or a dam, it is never reconsidered. Instead, the permit is “irrevocable.” Even when significant changes to a permitted facility are proposed, our laws do not require the DNR to seek public comment or hold a public hearing.
And even if Minnesota did have the best laws, laws alone are not enough. You need an independent agency willing to enforce the laws. The DNR has a conflict: State law requires the DNR to simultaneously promote and regulate mining. That’s a bad mix. And, as a lawyer who spent a career representing this state’s environmental agencies, I can attest that even good laws and regulations become worthless without adequate numbers of trained state employees to inspect mines and review permits, with the freedom to do their jobs.
So the next time someone repeats the mantra that “Minnesota has the best mining regulations in the world,” don’t buy it. Instead, ask that person why Minnesota allows open-pit sulfide mines and upstream design dams instead of dry tailings facilities. Ask them why we don’t require independent safety panels and why Minnesota mining permits are not subject to periodic public review. Ask them why we are behind Chile and Costa Rica and Maine and Montana.
Saying we are the best doesn’t make it so.
Ann Cohen is a senior attorney at the Minnesota Center for Environmental Advocacy (mncenter.org), which has offices in St. Paul and Duluth. She was a lawyer in the Minnesota attorney general's office, representing the Minnesota Pollution Control Agency for 32 years. She wrote this exclusively for the News Tribune.