DULUTH — Should the Minnesota Department of Natural Resources conduct an environmental review for the planned expansion of the Milepost 7 tailings basin near Silver Bay?

Environmental groups say the DNR is required to, and the Minnesota Pollution Control Agency is waiting on the DNR to make its decision before it proceeds with its own separate permit for the project.

But the DNR in 2017 said it wouldn't have to, but after receiving a permit application in December from Cleveland-Cliffs, owner of Northshore Mining, the agency is taking a fresh look at the project.

DNR Assistant Commissioner Jess Richards said that while the agency in 2017 said one wouldn't be necessary "based on the information we had at the time," Cliffs submitted its permit application in December and the state agency is reviewing it to determine whether a supplemental environmental impact statement is necessary now that it has the specifics.

"We're currently looking at that application," Richards said. "And as part of that review, like is customary with really any mining permit application, our staff are, again, reviewing whether the proposed project triggers any need for additional environmental review."

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Cliffs is planning to expand the footprint of its 2,100-acre Milepost 7 tailings basin by 850 acres — a 40% increase in the basin’s surface area. The famed basin was completed in 1980 after then-owner Reserve Mining was forced to stop its decades-long practice of dumping tailings — the fine pieces of waste rock left over after taconite is crushed and stripped of iron ore — directly into Lake Superior and years of court battles over the tailings’ pollution and asbestos-like fibers found in the drinking water of Duluth.

An aerial view looking southeast at Cleveland-Cliffs’ Milepost 7 tailings basin. The area in the foreground is where the expansion would take place. (Clint Austin / 2020 file / caustin@duluthnews.com)
An aerial view looking southeast at Cleveland-Cliffs’ Milepost 7 tailings basin. The area in the foreground is where the expansion would take place. (Clint Austin / 2020 file / caustin@duluthnews.com)

Since then, the basin's footprint has remained about the same size. As more tailings have been added, it's grown vertically rather than spreading out.

But with such a significant expansion planned, Paula Maccabee, counsel and advocacy director of environmental group WaterLegacy, believes the DNR should conduct a full environmental impact statement, a process that would allow for public notice and public comment.

She pointed to a state administrative rule that requires the DNR to prepare an environmental impact assessment for the “expansion of a stockpile, tailings basin, or mine by 320 or more acres.”

But in its 2017 assessment, the DNR said such an environmental review would not be necessary because all but 30 acres of the expansion sits within the boundaries considered in the 1970s.

Maccabee pointed out the 1977 EIS labels the space to the northwest of the existing basin as "coarse tailings storage," which is different than the wet slurry tailings that would be stored in the expansion area. Additionally, the 1977 EIS considered downstream dam construction methods, which are considered safer than upstream methods. Upstream dam construction has been allowed at Milepost 7 since the DNR and MPCA approved Cliffs to use such construction methods in 1997, according to the 2017 assessment.

"It's more than 40 years later," Maccabee said of the 1977 EIS. "And it's a new project that wasn't contemplated."

Maccabee said an environmental review would also require the state and Cliffs to consider alternatives, which could include dewatering tailings or other, potentially safer methods of tailings storage.

Still, Richards of the DNR defended the 2017 assessment and said the agency is still reviewing the project now that it has the company's permit application in hand. A decision on an environmental review is likely in the next few months, he said.

"We believe the 2017 environmental review assessment was put together well and legitimately stands with what we looked at," Richards said. "But then anytime we get a permit application, that's where the details come in ... anytime there's a change, we take a step back, and we look specifically at the permit applications and the details to make an assessment of whether an EIS supplement or environmental review is needed.

"And that's not abnormal at all, it doesn't indicate one or the other which way we're heading."

Maccabee disagreed.

"If (the DNR's) real answer is they didn't have the application, then what they should have said is: 'We can't make a determination on environmental review until we have an application,'" Maccabee said.

The question of whether an environmental review is needed prompted the MPCA in December to request an extension from the U.S. Army Corps of Engineers on submitting its 401 water quality certification, a permit awarded by a state's regulators if the project's impact on water falls within the state's standard, to the federal agency. The Army Corps granted an extension until July 7, giving the MPCA a full year to consider the project.

"The proposed project requires permits from multiple agencies and a determination as to whether environmental review may be required is still outstanding," Katrina Kessler, the MPCA's assistant commissioner for water policy and agriculture, wrote in the email to the Army Corps in December. "If environmental review is required for this project, the Minnesota Environmental Policy Act prohibits MPCA from issuing any project approvals until that review has been completed."

Another point the MPCA said it needed clarification on — whether the dam would rise to 1,365 feet — has since been resolved as Cliffs permit application said it would top out at 1,315 feet above sea level — the maximum height it's currently permitted for.

"Since Cliffs’ application does not raise the dam height, one issue is resolved," MPCA spokesperson Darin Broton said in an email to the News Tribune. "Regardless, we need to wait for DNR to determine its next step on environmental review, which sounds like the next couple months. That decision paves the way on a 401 certification."

Cliffs did not respond to Forum News Service's request for comment.