Agency Review of Nonferrous Mine Siting Rule

After consideration of more than 4,000 public comments and extensive analysis, the Minnesota Department of Natural Resources (DNR) filed its decision with the Ramsey County District Court regarding the adequacy of the nonferrous mine siting rule to protect the Boundary Waters Canoe Area Wilderness (BWCAW), on May 31, 2023.

In the 74-page decision, the DNR found that the nonferrous mine siting rule (Minn. R. 6132.2000) is largely protective, but should be reopened to better address the potential for mining-related noise and light impacts on the BWCAW. To address the potential noise and light impacts, the DNR will initiate rulemaking to expand the existing Mineral Management Corridor to provide a greater setback from the BWCAW for mining activities that would disturb the surface.

With the exception of noise and light as discussed above, the DNR found that the siting 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 State of Minnesota already applies the most protective water quality standard available, Prohibited Outstanding Resource Value Water, to the BWCAW. This essentially prohibits issuance of a water quality permit that would have a measurable impact on waters of the BWCAW. Similarly, the BWCAW is afforded the highest level of air quality protection in federal law.

The DNR’s decision as outlined above addresses the legal question raised in this case — is the current nonferrous mine siting rule protective of the BWCAW in combination with other regulatory controls? However, many of the comments that we received about the rule addressed fundamental questions about the State’s nonferrous mining policy and what level of risk should be allowed under that policy. Any decision to modify a fundamental state policy of this nature belongs in front of the legislature, rather than an executive agency. The DNR recognizes that some nonferrous mining activities may pose greater long-term risks and would be inherently more challenging to regulate in the Rainy River Headwaters watershed. Therefore, the DNR is 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

Additional Background

On June 24, 2020, Northeastern Minnesotans for Wilderness (NEMW) sued the DNR under the Minnesota Environmental Rights Act. NEMW claims in its lawsuit that Minnesota’s longstanding nonferrous mine siting rule is inadequate to protect the BWCAW. Specifically, NEMW asserts that Minnesota Rule 6132.2000 (Subparts 2A and 3A) should prohibit nonferrous metallic mineral mining (e.g., copper-nickel mining) in the entirety of the Rainy River Headwaters watershed. Currently the rule prohibits mining in the BWCAW and prohibits mining that disturbs the surface in the Minerals Management Corridor around the BWCAW. Twin Metals Minnesota, LLC (Twin Metals) intervened in the lawsuit and, therefore, is also a party to this case.

At the DNR’s request, the Court issued a September 13, 2021 order sending the case back to the DNR for further proceedings. And on Monday, October 4, 2021 the DNR filed a Procedural Order outlining a process the department would follow to review Minnesota's siting rule for nonferrous mines. This approach allowed the DNR, as the state’s primary regulatory authority for mining, to assess the adequacy of the siting rule through a robust administrative process.

From November 9, 2021 and through December 8, 2021 the DNR took public comment on the following question:

With express consideration of how Minn. R. 6132.2000, subp. 2A and subp. 3A fit within the broader context of all applicable environmental protection in state and federal law regulating nonferrous mining, are the exclusion of mining in the Boundary Waters Canoe Area Wilderness (BWCAW) set forth in Minn. R. 6132.2000 subp. 2A, and the prohibition of surface disturbance in the Boundary Waters Canoe Area Wilderness Mineral Management Corridor as set forth in Minn. R. 6132.2000, subp. 3A adequate to protect the BWCAW from pollution, impairment, or destruction or should further restrictions on mining be extended to all or part of the Rainy River- Headwaters defined as HUC 09030001?

On August 10, 2022 the DNR filed a request with Ramsey County District Court to extend the deadline for the decision on whether the existing rule is adequate. The extension request was granted, and the deadline was set for May 31, 2023.

In accordance with the Ramsey County District Court order, NEMW and/or Twin Metals may, within 30 days, demand a contested case hearing regarding DNR’s decision.

At this point, the DNR has not initiated rulemaking to expand the Mineral Management Corridor to better protect the BWCAW from sound and light impacts relating to nonferrous metallic mineral mining. As indicated in DNR’s May 31, 2023 order, both Northeastern Minnesotans for Wilderness and Twin Metals Minnesota LLC had the right to request a contested case hearing to challenge DNR’s decision. Both of these organizations have timely requested a hearing. For that reason, the DNR is not able to proceed with rulemaking until the appropriate scope of that rulemaking is determined through the contested case hearing and any appeals.