An Agate Original
The courts have not been kind to Minnesota regulators trying to issue permits for the state’s first copper-nickel mine. After ten years of study and more than a year of legal arguments, courts have so far rejected four key permits for the proposed PolyMet mine, owned by Switzerland-based mining giant Glencore. The success of these challenges has surprised some, including many Minnesotans who believe our state government upholds the highest standards in environmental protection and fair play. But a close look at another mine permitting process might help explain the courts’ skepticism.
While the fight over PolyMet has been grabbing headlines, work to revise an air permit for the nearby Northshore taconite mine, owned by Cleveland-Cliffs, inched along below the radar. Documents obtained by Agate through a Minnesota Data Practices Act request reveal much about how that three-year process worked. And there are some commonalities between the two cases.
The revised permit for Northshore was a historic change. This mine was in the public eye back in the 1970s, when, as Reserve Mining, it was dumping thousands of tons of waste rock into Lake Superior.
The Reserve Mining case was an early and influential victory for governments and environmentalist activists trying to rein in outrageous pollution. A turning point in the litigation occurred when researchers reported finding “asbestos-like particles” in the water of nearby cities that drew their drinking water from Lake Superior. Federal court decisions beginning in 1974 not only ordered Reserve to stop dumping the waste into the lake; they also required the company to protect residents of the town of Silver Bay from airborne asbestos-like particles generated by its operations. They ordered Reserve to keep fiber concentrations “below a medically significant level,” and proposed that controls which reduced the fiber count to the level found in the ambient air of a “control city” such as St. Paul would be considered adequate. No one had any idea how to set a safe exposure level for asbestos in the air (the Minnesota Department of Health says “no amount of asbestos is considered safe”), but the courts concluded that people in Silver Bay should not be burdened with a higher level than other cities in the state. After Reserve installed pollution-control equipment, the asbestos-like particles (which are now called Minnesota Fibers) in Silver Bay air dropped dramatically, from well over 100,000 fibers per cubic meter to today’s 700 to 3,000 fibers per cubic meter. (Recent monitoring in St. Paul shows 1509-1724 fibers per cubic meter, and a monitor near the proposed PolyMet copper-nickel mine recently measured 820 fibers per cubic meter.)
But the “control city standard” has been troublesome for both the mine and the agency charged with enforcing it, the Minnesota Pollution Control Agency. The asbestos concentrations in St. Paul are variable and have declined over the years. Sampling the air for these microscopic fibers is highly technical; there is a long lag time between collecting samples and analyzing them.
In the forty years the control city standard was in place, the MPCA did not charge the mine with any infractions. In fact, for a long period the agency stopped sampling the air in St. Paul; sampling was resumed in 2006.
Taconite workers across the Iron Range have long been concerned about these fibers. In 1997 the Minnesota Cancer Surveillance System reported that the rate of mesothelioma (a rare cancer caused by asbestos) among men in the seven-county region of northeastern Minnesota was over 70 percent higher than the statewide average. From 2009 to 2014 the University of Minnesota School of Public Health conducted a massive study to try to figure out why. The study concluded https://bit.ly/2KklIfN that the high rates of mesothelioma could probably be attributed to exposure to commercial asbestos the workers had been exposed to, either in the mines or in other jobs, rather than to the taconite itself. The study did not investigate possible impacts on the general public, nor did it pinpoint a safe level of exposure.
The mine and processing plant in Silver Bay is now owned by Cleveland-Cliffs, and is called the Northshore mine. Cliffs has been asking for a change in its air permit for years, pointing to dramatically lower fiber concentrations in the air, thanks to pollution control devices. In both 2008 and 2013 the company formally asked the MPCA to abandon the control city standard and put an end to ambient air monitoring requirements. The federal court that had originally set up the control city standard lifted the mandate in 2009, saying it was up to the state to regulate the plant. Negotiations between Cliffs and the state failed to produce an approach both sides could agree on. In 2015, the MPCA and the DNR jointly hired a manager to focus on the fibers issues, and negotiations with Cliffs began again.
In the absence of a health-based standard, the MPCA proposed to set an “Action Limit” which would define the number of Minnesota Fibers permitted in the ambient air around Silver Bay. The limit would be based on concentrations found during 12 years of monitoring in Silver Bay and nearby Beaver Bay. According to the proposed permit, if monitors detected more fibers, the company would be required to figure out why it happened and find a way to bring the number back down.
Years of negotiation
In response to Agate’s Data Practices request, MPCA provided hundreds of documents, including emails, edited versions of the permit, calculations, notes, reports, and briefing papers. Together they reveal the long and convoluted process of writing a permit. Essentially the agency must navigate the terrain between a company that wants to do something and the necessity to protect the environment and public health.
Starting in 2016, MPCA and Northshore began negotiating over the wording of the permit and the Technical Support Document (TSD), which lays out the scientific justification for the terms of the permit.
This happened to be a period when ambient levels around the plant were slightly higher than in recent years, for reasons unknown to MPCA staffers.
The agency began by proposing a limit of 3,300 fibers per cubic meter. Using a different period as a baseline, Northshore suggested 4,800.
In an internal memo, an MPCA staffer observed: “The tribes and citizens have been pushing for reduction in ambient fiber concentration for many years. [Our] proposed Action Level represents a small reduction to address their concerns, and it provides sufficient margin of compliance for recent rise in ambient fiber concentration.” In other words, there’s enough slack to cover the recent uptick.
In 2018 the MPCA decided on a level of 4,000 fibers per cubic meter.
“At times impatience showed through.”
Northshore’s other proposed changes for the Technical Support Document were mainly aimed at streamlining and downplaying scientific uncertainties. In January, 2018, Northshore’s Environmental Manager, Andrea Hayden, wrote to MPCA staffers: “If the [Technical Support Document] expresses uncertainty or lack of consensus, it foreshadows imminent public health risks and thus undermines the proposed regulatory approach of ‘monitor and maintain’ in lieu of one requiring reductions. The TSD needs to express certainty that the available data have not supported establishment of a health risk factor—this is the basis for the proposed approach.” She further suggested the benefits of establishing “a strong record on this issue, which is anticipated to serve as an immediate reference point for other regulatory agencies and actions…”
Hayden and her colleague at Northshore, Scott Gischia, repeatedly emphasized the fact that the permit is not based on a health standard because none exists. They highlighted the lack of evidence of harm, inserting wording such as “available evidence does not currently reflect any increased risk for the broader community.” They tried to remove information about research on possible health effects of fibers in order to minimize uncertainty. For example, they crossed out this: “Sufficient data do not exist to set a traditional health-based standard for Minnesota Fibers, nor can it be firmly established that exposure to these fibers is inconsequential to public health.”
This back-and-forth writing and re-writing was carried on for months in bland bureaucratic language with a touch of Minnesota Nice. But at times impatience showed through.
In late 2017 Hayden asked for time to review the documents again before the agency made a formal public announcement of the process.
The MPCA’s Project Manager, Eric Alms, responded politely. “We do believe that your feedback and the feedback of many others has dramatically improved [the documents]. At this point we are still planning on moving forward with pre-public notice and public notice with the current drafts.” In spite of this hard line, he assured the company that “This is still a draft permit and would need to go through the formal procedures for public participation before issuing a major amendment.”
“Engagement yes, mostly.”
Apparently discomfited by the plan to move forward, Northshore’s Scott Gischia wrote back with a pointed warning: the negotiated process is designed to “avoid a more complicated legal process,” he said, adding, “I would remind PCA that it remains in a challenging position with no direct legal authority to regulate the elongate mineral particles in question.”
MPCA stuck with its plan to move ahead, but offered more reassurance: “We will keep you informed about the timing of the early notice and public notice so that there are no surprises.”
Then the Christmas and New Year’s holidays intervened and in mid-January negotiations got back on track without the muted sparring. But more uncomfortable moments lay ahead.
In April 2018, Northshore’s negotiators sent the documents to upper management for approval. They said this should only take a couple of days, but then they followed up by asking the MPCA to put the air permit on hold and work instead on a pending permit for a new boiler. As MPCA Duluth Regional Manager Jeff Udd explained in an email to other staffers: “They are really concerned that the fiber amendment will get comments and the issues will take some time to get resolved and delay the schedule for the boiler amendment.” MPCA promised it would deal with the boiler permit even if the control city standard project got derailed.
At the same time, Jeff Udd apparently had unsettling thoughts when he reviewed the plan staffers had presented to the MPCA Advisory Committee two years earlier. At that time, MPCA staff had planned to get feedback from several agencies that have long been involved in fibers issues and to hold a public informational meeting in Silver Bay. “Did we really do this?” Udd asked his colleagues in an email. A supervisor, Suzanne Baumann, replied: “Engagement yes, mostly. Public meeting, no.”
She explained that the plan “evolved’ to simply notifying the agencies, “perhaps giving them a heads up in advance out of courtesy, but not providing a separate review time.” On the question of a public meeting, Baumann said, “We expected there to be a lot of interest in fibers… and there wasn’t/hasn’t been.” (This process coincided with the final stages of permitting for the PolyMet copper-nickel mine.) “There are select folks who are interested, but most of them are not local,” Baumann continued. “So, I’d be comfortable considering [the public meeting] a non-binding commitment.”
“I’d be comfortable considering [the public meeting] a non-binding commitment.”
This relaxed attitude resembles in some ways the Minnesota Department of Natural Resources’ decision not to allow a contested case hearing for the proposed PolyMet project. These hearings are commonly conducted by an administrative law judge for major and controversial projects. Minnesota law allows them upon the petition of “any person owning property that will be affected by [a] proposed operation.” In the announcement November 1, 2018 that it was granting the PolyMet permit, the DNR said people living downstream from the proposed mine had no standing to request such a hearing, because they were “expressing concerns about speculative events which the DNR has already determined are unlikely to occur.” As Minnesota Appeals Court Judge Edward J. Cleary put it, “In other words, the DNR rejected the requests for a contested-case hearing based on its determination—without a hearing—of some of the very issues that [challengers] sought to have addressed in a hearing.” The judge remarked that challengers had provided “substantial evidence” that their properties would be affected by a dam failure, but the DNR concluded that a dam break was unlikely and the project “is not expected to have significant adverse effects on downstream or upstream water quality.” Here the DNR added two words not found in state rules for contested case hearings, “significant” and “adverse.” And in a puzzling apparent attempt to abdicate responsibility, the DNR claimed it had no jurisdiction over the water quality impacts of the project because that would be the MPCA’s responsibility. The judge disagreed: “The DNR is not relieved of its duty to protect the waters of the state merely because the MPCA also plays a regulatory role in this area.” The net result of the DNR’s decision was to limit public input on the PolyMet project.
Following this ruling the DNR appealed to the Minnesota Supreme Court. In a news release, the agency said Cleary’s decision “fundamentally changes long-standing interpretation of state law regarding agency authority and discretion when making permit decisions.” It is true that for many years, courts have tended to defer to the expertise of state agencies, but the rash of decisions in favor of environmental groups and tribes may be a sign that default position could be changing.
Meanwhile, In the Northshore case, the MPCA’s Eric Alms had reached out to LeRoger Lind of the Save Lake Superior Association, an environmental group local citizens had created to fight the Reserve mine pollution. Lind responded by email in July, 2016 with some concerns, but did not file comments during the public review period. The Association’s Lori Andresen told Alms that she had not received the notice of the public comment period, even though she was on a list of interested people. To align with new federal rules, MPCA no longer prints official notices in local newspapers. The change was made official in January 2019. At the time, the agency said it intended to provide notice in newspapers “for permits where greater community interest is expected or where internet access may be limited.” Andresen pointed to the fact that the agency had only received two comments, and asked the staff to put out a new notice for public comment. The agency declined.
The MPCA no longer prints official notices in local newspapers.
In the end, the MPCA made many changes to the Technical Support Document in response to Northshore’s requests. Two tribal groups, the Fond du Lac Band of Lake Superior Chippewa and the 1854 Treaty Authority, which does natural resource work for the Bois Fort and Grand Portage Bands, provided extensive comments both before and after the permit was on public notice. But the agency only made two minor changes in response to these questions and suggestions. Here are some examples of the tribes’ concerns and the MPCA’s responses:
Tribes’ critique: The Fiber Action Level may not protect human health; Northshore has shown it can maintain fibers below that level; the level should be set not at what the facility can achieve but at what is safe.
MPCA response: Agree more research is needed on public health implications of the fibers. The Fiber Action Level is based on the level the company has achieved since it installed particulate pollution controls.
Tribes’ critique: Counting fibers by using a year-long rolling geometric mean “smooths out any peaks in fiber emissions and makes it impossible to know what type of event led to high values. This makes it hard to know what types of control measures will help address future events.”
MPCA response: The rolling geometric mean smooths out sample variability and reveals trends.
Tribes’ critique: When Northshore re-analyzes any sample (most likely to occur when a sample is abnormally high) the permit allows them to use the lower of the two values. It would be better to use the average of the two values.
MPCA response: The rolling mean will “smooth out any extreme results and any single ambient fiber sample will not have much of an impact.”
Tribes’ critique: There is no firm timeline to achieve compliance once the Action Level is exceeded. The language “shortest reasonable period of time” appears to leave it up to Northshore when to act.
MPCA response: We wanted to provide flexibility to allow the permittee time to investigate and develop an appropriate response.
Tribes’ critique: Requirements for the Fiber Action Limit should include quality assurance/quality control standards, and development of standard operating procedures.
MPCA response: Adding QA/QC and SOP to monitoring language.
The MPCA also shortened the time allowed for submitting samples to the lab for analysis from 60 days to 45 days.
It issued the air pollution control permit to Northshore on January 6, 2020.
Similar processes, similar concerns
In addition to the tribes’ concerns about the Northshore permit, other experts and environmental groups have questions. Steve Ring, a retired microscopy expert who spent years analyzing mineral fragments at the Minnesota Department of Health, said the concept is sensible: “You want them to figure out why they exceeded the chosen number, and develop additional control levels; that’s good,” he said. “But there’s no teeth. What if they don’t want to? What if the Minnesota Pollution Control Agency can’t lean on them?”
The courts seem to be asking the same kinds of questions as they send back one state-issued permit after another for the PolyMet copper-nickel project.
In the case remanding PolyMet’s air permit back to the MPCA, Minnesota Appeals Court Judge John Rodenberg ruled that there was merit in questions raised by environmental and tribal groups about whether PolyMet intended from the beginning to expand the mine’s output without revealing that plan to regulators. In the regulatory world, this is called “sham-permitting.” Rodenberg commented, “Of course, once a project is operating, expansion proposals may be viewed more favorably by regulators… and we lack the reflective findings to review whether MPCA abused its discretion” when it issued a minor permit despite the sham-permitting questions that critics had raised. In other words, as in 9th grade math class, the judge said the agency had not shown its work. It had not shown that it gave careful consideration to critics’ arguments. Pulling on a thread linking the two battles, the judge cited as precedent a Reserve Mining case from 1977, in which the court addressed the basic question, “whether the agency has taken a ‘hard look’ at the problems involved, and whether it has ‘genuinely engaged in reasoned decision-making.’“
Another commonality between the two cases is the ownership question. In the 1970s Reserve case, Judge Lord included Reserve’s co-owners—Armco and Republic Steel—in the proceedings, against their wishes. Lord wrote, “Armco and Republic must bear legal responsibility for Reserve’s actions,” and the only way to protect Minnesota taxpayers was to include the companies with deep pockets in the case.
Similarly, environmental and tribal groups are pushing the state to include Glencore in the permits for the PolyMet mine. Glencore is a Swiss mining giant whose stake in PolyMet has gradually increased to more than 70-percent.
As Northshore begins operating under its new permit, researchers continue to work on better ways to identify and count the tiny fibers. Philip Cook, a chemist at the EPA’s Great Lakes Toxicology and Ecology lab in Duluth, spent years studying different types of mineral fibers from around the world, documenting their length, width and other physical characteristics. He concluded that the standard approach for counting fibers probably excludes the vast majority of fragments in a given air sample. He suggested that total surface area was a more reliable predictor of toxicity than size and shape.
Experts in the field are aware of Cook’s analysis, but science—and regulations—change slowly. In a multi-year process, the EPA is working on a new risk assessment for asbestos but it does not contemplate a revised method to define and measure fibers. Congress is considering a bill to ban asbestos, but updating techniques to measure asbestos is not part of that process either.
Toxicologist Chris Weis at the National Institute for Environmental Health Sciences urges a definition based on health effects rather than minerology. Both the new risk assessment and the proposed ban will fail to protect human health “if the existing (flawed) definition is retained,” he says.
Many questions remain about permits for the 65-year-old Northshore taconite mine and the not-yet-built PolyMet copper-nickel mine. Concerned citizens keep asking those questions. As we consider the workers and the residents of nearby communities, we are reminded that the Minnesota Health Department says “No amount of asbestos is considered safe.”