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On Nov.13 Paula Maccabeemade an argument to the Minnesota Court of Appeals for an Environmental Impact Statement (EIS) at the proposed Milepost 7 iron ore tailings basin extension, which is located outside of the cities of Silver Bay and Beaver Bay, and three miles from Lake Superior. Maccabee is the director and lawyer of Water Legacy Advocacy.
The appeal follows a Minnesota Department of Natural Resources (DNR) decision made in March 2024 to not require an EIS for the Milepost 7 project.
During the public comment period more than 1,300 individuals provided comments on the Environmental Assessment Worksheet (EAW) for DNR consideration.
In March 2024 the DNR issued the decision that no further environmental impact review would be required.
“Our review confirms that potential environmental impacts from the proposed project match those studied in prior environmental review and/or are subject to robust ongoing regulatory oversight. Importantly, the Milepost 7 tailings dams are some of the most closely regulated dams in the state, meeting all applicable factors of safety and state dam safety laws,” said DNR assistant commissioner Jess Richard.
NorthshoreMininghasproposed changes to the existing basin that would increase its length and height. The mining company says that the changes are not technically an expansion and therefore should not be subject to an EIS.
Arguing that the substantial increase to the size of the basin and height of the upstream, offset dam merits a new review, Maccabee says that the science of 48 years ago is not sufficient to make safe decisions.
In the years since the 1976 decision to approve what turned out to be the existing dam, the DNR has moved to no longer allow upstream dams that are more likely to have a negative impact if they fail.
In her argument Maccabee said that the new project is very different, with finer tailings that are more easily liquified, and that the existing dam that is proposed to be raised in height is of a type of construction that is more susceptible to instability. Representing the DNR at the appeal hearing on Nov. 13 was Oliver Larson from the attorney general’s office. Larson told the judges that he felt Milepost 7 was one of the most studied for safety sites in the state.
Larson explained that the Sierra Club’s suggestion that a master permit for the site had been issued in 1985 and was long expired is a misunderstanding.
“There is an unusual permitting regime for this mine,” said Larson, “There is absolutely a permitting process in place that meets state law.”
The unusual permitting for Milepost 7 is a unique combo permit that is neither a Permit to Mine nor a Dam Safety Permit, said Larson. Instead, he said the Master Permit first issued in 1977 is followed by renewal every five years through operating plans.
“We are not denying the need to go through an environmental review process, the question for this case is where does it stop?” said Larson.
When asked by a judge about the risk of the upstream dam and the increase in size, Larson argued that further environmental review is not warranted since the risks of dam failure are the same and that upstream dams require maintenance to avoid a catastrophic failure.
“The engineering issues are there to be arbitrated in permitting, they will have the opportunity to challenge that in permitting,” said Larson.
Alexander Arensberg, the attorney for Northshore Mining, said this was a routine application for an amendment to an existing permit and was only being used by Water Legacy as an excuse to question the existence of Milepost 7.
The project is called Milepost 7 West Ridge Railroad Relocation, Dam extensions, and Stream Mitigation Project, however, Arensberg denied that the project was an expansion and said it did not require the preparation of an EIS, and that the master plan allowed for flexibility without every detail of scope spelled out.
In an interview with the Lake County Press Maccabee said Water Legacy believes decisions for environmental impact and human safety should be addressed in an EIS not just in the permitting process.
“The public and the government should be engaged in finding the facts and a less harmful and feasible solution,” said Maccabee, “I hope there is some scrutiny, it would be a terrible thing if that dam failed.”
Maccabee said that she believes that the people who live on the Beaver River and in Silver Bay should have more information on risk related to a taller dam. She said that the type of dam construction and the lack of extreme weather events being considered are important to assess.
A decision on the appeal is expected in early 2025.
