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  • To: Environmental Protection Agency – Region 5 From: Laura Gauger (Duluth, MN) Date: September 21, 2016 RE: Minn. Rules 7060.0800 and 7060.0500 and how they are “playing out” at PolyMet

  • Date: September 21, 2016 To: Environmental Protection Agency – Region 5 From: Laura Gauger (Duluth, MN) RE: Minn. Rules 7060.0800 and 7060.0500 and how they are “playing out” at PolyMet The Minnesota Department of Natural Resources (MDNR; the “Department”) issued a Record of Decision (ROD)1 in March 2016 regarding the adequacy of the Final Environmental Impact Statement (FEIS)2 for the proposed PolyMet mine. Statements made in Exhibit A of the ROD confirm that, if the State of Minnesota allows the mine to be built, all land within the company’s “property boundary” (total of 21,650 acres of water-rich lands in the Lake Superior and Boundary Waters Canoe Area Wilderness watersheds, including 6,650 acres currently in the Superior National Forest) will become part of a groundwater sacrifice zone where no groundwater standards will be enforced by the State of Minnesota or EPA.3 The operative regulation cited by the Department in its decision is Minn. Rule 7060.0800. You can read for yourself (Appendix A). Discussions with the Minnesota Pollution Control Agency (MPCA; the “Agency”) in Duluth have confirmed that it is not until the polluted water crosses the company’s property boundary that groundwater quality standards will be enforced. The agency stated, “That’s the way the law works,” even though, according to PolyMet’s own computer modeling supplied by Barr Engineering, the levels of pollutants in the groundwater at the mine site and tailings dump will be many times higher than standards set to protect people, plants and wildlife.4,5 Barr Engineering has predicted that the contaminated water from the project site will radiate outward and ultimately/exclusively travel southward (St. Louis River/Lake Superior watershed).6 Modeling provided by the Great Lakes Indian Fish and Wildlife Commission also shows a northward flowpath for some of the contaminated waters (Rainy River/Boundary Waters Canoe Area Wilderness watershed).7

    In Minnesota: Property Boundary = Compliance Boundary Not all states are as lenient as Minnesota with regard to the enforcement of groundwater quality standards at mine sites. All you have to do is look next door at Wisconsin, where there is a more stringent groundwater protection code in place that has still allowed profitable mining investment in the state (e.g., the Flambeau Mine). The tougher Wisconsin standard (NR 182.075, Wisconsin Administrative Code)8 suggests that Minnesota is behind the eight ball when it comes to protecting water resources at mine sites, an issue of interest to Minnesota Governor Mark Dayton.9 A copy of the cited Wisconsin code is included for your review (Appendix B). But there is even more you need to know! You will notice that NR 182.075 of the Wisconsin code includes language that draws a clear distinction between a mining company’s “property boundary” and the state’s “compliance boundary” used for enforcement of groundwater quality standards (also known as the “boundary of the design management zone”), suggesting the MPCA’s assumption that the two are necessarily one and the same is flawed. Of equal concern is how the MDNR’s comments reveal the basis for said policy of equating a mining company’s “property boundary” with the state’s “compliance boundary” was a “draft SONAR” for a “proposed (but not completed) 1992 revision of Minnesota Rules, part 7060.”3 In other words, this sweeping policy impacting thousands of acres of water-rich lands in northern Minnesota never cleared the final hurdles of Minnesota’s rule-making process, was never officially approved by those with oversight authority, and was never specifically codified in state law.

    Over, please →

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  • In effect, the MPCA and MDNR have done an “end run” on Minnesota’s legislative process and gubernatorial authority in a matter of great public importance that should have been subject to the normal checks and balances of good government. For this reason alone, the MPCA and MDNR’s decision to use the PolyMet property boundary as the compliance boundary for the project (or to use any other mining company’s property boundary as a compliance boundary) is flawed and legally indefensible. Yet, I submit it’s one of the cornerstones allowing these projects to move forward and consume vital groundwater reserves. Even if said approach to enforcing groundwater standards represented good policy in terms of how the iron mining industry has been regulated in Minnesota over the years, one cannot assume, as the MPCA and MDNR have done, that it is “appropriate”3 for nonferrous mining, a type of mining new to Minnesota and irrefutably notorious for its deleterious effects on water quality. It could be argued that, since copper-nickel mining is a new breed of cat with a new set of problems, it requires a new approach to protecting Minnesota’s waters. In addition, and as a separate matter, said policy of equating a mining company’s “property boundary” with the state’s ”compliance boundary” runs contrary to the requirements of Minn. Rule 7060.0500 (that the disposal of industrial waste “shall be controlled as may be necessary to ensure that to the maximum practicable extent the underground waters of the state are maintained at their natural quality unless a determination is made by the agency that a change is justifiable by reason of necessary economic or social development and will not preclude appropriate beneficial present and future uses of the waters.” The following fully-referenced table provides a summary of pertinent information regarding this issue. Please note that cited documents are listed on page 7 of the report and included on a DVD inside the back cover. In addition, please note that the DVD includes a power point presentation related to this report and several additional documents cited in that presentation. Thank you.

    Laura Gauger 1321 E. 1st St. #201 Duluth, MN 55805 Tel: 218-724-3004 Email: [email protected]

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  • Minnesota

    Wisconsin

    Groundwater Sacrifice Zone, as Codified in State Regulations This is the zone where no groundwater quality standards are enforced by the state. The groundwater sacrifice zone is encircled by a state agency- established “compliance boundary” that marks where groundwater quality standards must be met.

    MDNR Statements, specific to PolyMet Project:

    1. PolyMet Final EIS: Groundwater quality standards will be enforced “at the Mine Site and Plant Site property boundaries, not within the NorthMet Project Proposed Action footprint.”

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    2. Record of Decision in the Matter of the PolyMet FEIS: “Minn. Rule 7060.0800 states: ‘In making tests or analyses of the underground waters of the state … to determine compliance with the standards, samples shall be collected in such manner and place and of such type, number, and frequency as may be considered satisfactory by the agency from the viewpoint of adequately reflecting the condition of the underground water and the effects of the pollutants upon the specified water uses.’ A summary outline for the draft SONAR for proposed (but not completed) 1992 revision of Minnesota Rules, part 7060, describes the factors that MPCA routinely considers when recommending groundwater Points of Compliance and further recommends that the Point of Compliance cannot extend beyond the property boundary of a facility. The use of the property boundary as an evaluation location in the FEIS for evaluating potential effects of the proposed project is appropriate”

    3 (Appendix A).

    The above statement from the MDNR confirms that the MPCA’s lenient policy of enforcing groundwater quality standards at a mine’s property boundary instead of closer to the source of the pollution is discretionary on the part of the MPCA and not specifically codified in the law. Moreover, the MDNR’s statement reveals that the basis for said policy was no more than a “draft SONAR” for a “proposed (but not completed) 1992 revision of Minnesota Rules, part 7060.” In other words, this sweeping policy affecting thousands of acres of water-rich lands in northern Minnesota never cleared the final hurdles of Minnesota’s rule-making process (See Appendix C for copies of Minn. Rule 1400.2070 and Minn. Stats. 14.131 and 14.23 governing SONAR preparation). Said policy was never officially adopted into law or officially approved by those with oversight authority (the Minnesota Legislature and Governor’s office).

    Chapter NR 182, Wisconsin Adminsitrative Code addresses the regulation of “Nonferrous Metallic Mineral Mining Wastes” (Appendix B). In particular, please see Section NR 182.075 (shown below).

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  • Minnesota

    Wisconsin

    Groundwater Sacrifice Zone, as Codified in State Regulations (cont.)

    In addition, even if the cited recommendation had cleared the final hurdles of the rule- making process, it appears the MPCA and MDNR have made an incorrect assumption about what the recommendation really said. Saying that the Point of Compliance “cannot extend beyond” the property boundary does not mean that the Point of Compliance shall be “at” the property boundary. Take a look at the Wisconsin example, and you will see what I mean. Like Minnesota, Wisconsin does

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