Permitting challenges continue; Legislative efforts could provide relief

PolyMet Mining proposes to develop a mine and processing plant to extract copper, nickel and precious metals from the NorthMet Deposit in northeastern Minnesota. (Image courtesy of the Minnesota Pollution Control Agency.) The bipartisan Fiscal Responsibility Act of 2023 that was passed by the U.S. Congress and signed into law by President Joe Biden on June 3 includes a compromise provision to modernize the federal permitting process for mining and other projects. The debt ceiling legislation includes an amended version of the Building United States Infrastructure through Limited Delays and Efficient Reviews Act (BUILDER Act), which was originally part of the “Lower Energy Costs Act,” the energy and permitting legislation that House Republicans passed in March. The intent of the BUILDER Act is to update the National Environmental Policy Act (NEPA). The legislation sets two-year time limits for environmental impact statements (EIS), and one year for more modest environmental assessments. “There is some really good progress there in setting deadlines for agencies to complete the permitting process,” Ashley Burke, vice president – communications, with the National Mining Association (NMA) told Mining Engineering (ME). “These are all really important steps that need to be taken. However, there is so much more that needs to be done and that could be done.” It is well known that the permitting process for mines in the United States is a complex, cumbersome and lengthy process fraught with uncertainty. For years, the mining industry in the United States has operated under the assumption that it takes between seven and 10 years for a mineral project to work its way through the full permitting process. In reality, it can take longer than that — just ask the folks at Rosemont Copper, Twin Metals or Northern Dynasty Minerals. And it’s not just mining projects that can be slowed by the complex NEPA process. Debra Struhsacker, environment permitting and government relations consultant said infrastructure projects of all shapes and sizes require federal agencies to prepare NEPA documents. This includes the framework for the energy transition. “Everything from transmission lines that are going to be needed to support national electrification, to road building and pipelines, they all face the same permitting challenge of a NEPA analysis that is fraught with uncertainty and delays,” Struhsacker told ME. While the legislation in the debt ceiling bill is a step in the right direction, Struhsacker warned that there are still plenty of challenges in the permitting process. “Beyond the protracted nature of the NEPA process, there’s another element of permitting uncertainty and delays, and that’s the litigation phase of the NEPA process. Once a federal agency has issued its NEPA decision it is typical for that decision to be challenged administratively and then more typically in the federal court system, and that can add years to a permitting process. Litigation adds enormous cost to the process,” said Struhsacker. “It also means that the whole process is burdened with uncertainty because you don’t know when you’re going to finish and you have to also hope that you can finish, given the uncertainties of the judiciary and court decisions.” The uncertainty created by the process has adverse effects on mineral exploration and development in the United States including investment. The life of a mining project, from exploration to closure is several decades and so too is the investment in a mining project. This uncertainty has likely played a significant part in the fact that the United States accounts for just 11 percent of worldwide spending on mineral exploration, and production is currently reliant on a population of mature mining projects, according the NMA. Critical time for critical minerals The permitting challenges come at time when the world is facing the most mineral and metal intensive era in human history. The International Energy Agency (IEA) has estimated that the demand for some minerals could increase by more than 40 times by 2040. Demand for minerals critical to an energy transfer to meet aggressive decarbonization goals will be among the highest. These minerals include copper, lithium, graphite, cobalt and nickel. The IEA estimates that demand for copper will more than double by 2040 and demand for rare earth elements could increase three to seven times. The IEA released its first annual Critical Minerals Market Review in July. The agency noted that a surge of investment in critical minerals could help the world meet the surging demand but only if the planned projects move ahead and stay on schedule. According to the report, the market for minerals that help power electric vehicles, wind turbines, solar panels, national defense applications and other technologies key to the clean energy transition has doubled in size over the past five years. From 2017 to 2022, the energy sector was the main factor behind a tripling in overall demand for lithium, a 70 percent jump in demand for cobalt, and a 40 percent rise in demand for nickel. The market for energy transition minerals reached $320 billion in 2022 and is set for continued rapid growth, moving it increasingly to center stage for the global mining industry. “In response, investment in critical mineral development rose 30 percent last year, following a 20 percent increase in 2021. Among the different minerals, lithium saw the sharpest increase in investment, a jump of 50 percent, followed by copper and nickel,” IEA wrote in a statement. “The strong growth in spending by companies on developing mineral supplies supports the affordability and speed of clean energy transitions, which will be heavily influenced by the availability of critical minerals.” “At a pivotal moment for clean energy transitions worldwide, we are encouraged by the rapid growth in the market for critical minerals, which are crucial for the world to achieve its energy and climate goals,” said IEA executive director Fatih Birol. “Even so, major challenges remain. Much more needs to be done to ensure supply chains for critical minerals are secure and sustainable.” As noted in the U.S. Geological Survey’s (USGS) Critical Minerals Review published in the May issue of ME, the United States is largely dependent on foreign sources for 12 of the minerals included among the 50 critical minerals. “As the permitting process for important projects across the U.S. drags on, geopolitical rivals are taking advantage of our bureaucratic inertia,” NMA president and chief executive officer Rich Nolan said in testimony before the U.S. Senate Committee on Energy and Natural Resources on May 11. In July, China’s commerce ministry announced that it would begin to control exports of some metals widely used in the semiconductor industry. It is the latest salvo in an escalating war over access to high-tech microchips between Beijing and the United States. The controls, which China said were aimed at protecting national security and interests, will require exporters to seek permission to ship some gallium and germanium products. “If ever there was a red flag in the air that’s it,” said Burke. “We need to fix our supply chain here and we need less talk and more action from this administration to do that. What the Biden administration has said about these concerns and what it is actually doing leaves a huge gap. Very few mines have been approved in the last few years. And on the flip side, these large land withdrawals and leases being pulled are further hindering efforts to stabilize our supply chain.” In June, a key water permit for the proposed NorthMet copper-nickel mine in northeastern Minnesota was revoked by the U.S. Army Corps of Engineers. The Army Corps said the permit, known as the Clean Water Act “Section 404” wetland permit was revoked because it could not “ensure compliance with the applicable downstream water quality requirements” of the Fond du Lac Band of Lake Superior Chippewa, whose reservation lies downstream from the proposed mine on the St. Louis River. In May 2022, the 9th Circuit Court of Appeals upheld an Arizona District Court’s 2019 decision to revoke a key permit for the Rosemont Copper project in Arizona and the District Court’s ruling that Rosemont failed to prove it had mineral rights on the lands where waste rock was to be buried. In Alaska, the Pebble Project has been through a roller coaster of regulations for the past 15 years. In January, the U.S. Environmental Protection Agency said it plans to take steps to block the proposed project by preventing Northern Dynasty from storing mine waste in the state’s vast watershed. “This creates an untenable situation and injects uncertainty into a permitting process while chilling investment in mineral projects or any other kind of projects,” said Struhsacker. “When there is an opportunity for an agency to retroactively reverse a permit decision that it made several years ago there is no regulatory or legal certainty that a developer has acquired the rights that are needed to responsibly develop a project, whether it’s a mining project or any other kind of project.” Thacker Pass moves forward On July 17, the 9th U.S. Circuit Court of Appeals rejected a half-dozen legal arguments that would have halted production of Lithium Americas’ Thacker Pass lithium project 320 km (200 miles) northeast of Reno, NV. Opponents of the mine have been fighting in federal court for two years to stop the mine, saying that it would violate multiple environmental laws and destroy lands tribal members consider sacred because they say dozens of their ancestors were massacred there in 1865. The three-judge panel did not specifically address the claims that the project fails to comply with a new opinion the 9th Circuit issued last year that blocked a copper mine in Arizona based on a more stringent interpretation of the 1872 Mining Law regarding the use of neighboring lands to dispose of waste. Instead, the judges deferred to the expertise of the U.S. Bureau of Land Management, which approved the mine in 2021. That approval was supported by U.S. District Judge Miranda Du in Reno earlier this year to allow construction to go forward even though she concluded the mine was not in complete compliance with the new interpretation of the 1872 Mining Law. Company officials said they were “pleased to see such a decisive ruling” and that construction was continuing. “We have always been confident that the permitting process for Thacker Pass was conducted thoroughly and appropriately,” Lithium Americas chief executive officer Jonathan Evans said in a statement emailed to The Associated Press. Path forward Many mining projects continue to navigate the permitting process, but there is some bipartisan recognition of the issue. Three recently introduced bills in the Senate: the Building American Energy Security Act, the Spur Permitting of Underdeveloped Resources (SPUR) Act and the Revitalizing the Economy by Simplifying Timelines and Assuring Regulatory Transparency (RESTART) Act all aim to streamline the permitting process and provide more certainty to the timing of legal reviews. “These policy recommendations are commonsense changes that would provide regulatory certainty to investors that the U.S. seeks to attract on a global scale in the mineral supply chain,” said Nolan. “Instead of only pursuing mineral supplies from foreign sources or exporting domestically extracted materials for further refinement, processing and smelting.” Hermosa Project finds predictability in permitting In May 2023, South32’s Hermosa project in southern Arizona was confirmed by the U.S. Federal Permitting Improvement Steering Council (FPISC) as the first mining project to be added to the FAST-41 process. The Fixing America’s Surface Transportation Act also known as the FAST Act was enacted on Dec. 4, 2015. Title 41 of that act (FAST-41) established new coordination and oversight procedures for infrastructure projects being reviewed by federal agencies. FAST-41 is intended to improve early consultation and coordination among government agencies, increase transparency through the publication of projectspecific timetables with completion dates for all federal authorizations and environmental reviews, and increase accountability through consultation and reporting on projects. Mining was added to FAST-41 in 2020. To qualify, Hermosa had to meet certain rigorous criteria to demonstrate how it will benefit the nation. This includes meeting one of the four criteria areas: Objective, discretionary, tribal or carbon capture. Hermosa meets two criteria areas — objective and discretionary. The project is home to two federally designated critical minerals. It is currently the only advanced mine development in the United States that could produce manganese and zinc, two minerals that are essential for the global energy transition. Currently, 97 percent of the manganese produced in the world is from China. “The criticality of these resources will help enable our nation to achieve its bold decarbonization targets,” Hermosa president Pat Risner said. The project is located in Santa Cruz County, a historically disadvantaged community in Arizona that will see significant economic gains from the project. “FAST-41 was enacted for shovel-ready, critical infrastructure projects, particularly transportation projects that the Obama administration wanted to get through the National Environmental Policy Act (NEPA) process in a more predictable, coordinated and transparent way,” Risner told Mining Engineering. “NEPA is a big coordination exercise with multiple federal agencies, some state entities, as well as tribes, the public and communities all involved in in one way or another. What FAST-41 does is it enhances that coordination.” While the Hermosa project is located on private lands there are a number of aspects that will require South32 to navigate the NEPA process, namely roads and drill pads. The proposed project will be an underground mine with a small footprint and dry stack tailings. Located in the Patagonia Mountains, about 80 km (50 miles) southeast of Tucson, Hermosa comprises the zinc-lead-silver Taylor sulfide deposit and the zinc-manganese-silver Clark oxide deposit. In addition to the Taylor and Clark deposits, Hermosa has a highly prospective broader land package that includes the copper-lead-zincsilver Peake exploration target as well as the Flux prospect. “The majority of the two resources, the manganese and the zinc resource, are centered on private land in the middle of the Coronado National Forest,” Risner said. “We intend to initially develop both the zinc and the manganese resource from private lands. So the initial development of Hermosa construction of all the surface infrastructure, the sinking of shafts to the driving the decline to the manganese resource and early tailing storage, all of that can be confined to private lands, which doesn’t actually require NEPA. Because of that, we are able to move forward more quickly without doing NEPA up front. But ultimately, to fully develop both resources, the manganese and the zinc, we will have some ancillary support infrastructure that does impact the federal lands around us. That is why we will need to go through a NEPA process,” he explained. “So that’s why FAST-41 is important, because we need that to be a predictable, efficient process to ensure continuous supply of these two critical minerals.” In July, FPISC published the proposed comprehensive, integrated permitting timetable for South32’s Hermosa project. The permitting timetable from FPISC includes intermediate and final completion dates for all federal environmental reviews and authorizations for full project development, as well as a list of cooperating agencies. The proposed permitting timetable projects Hermosa will happen in three phases. Hermosa’s mine plan of operations will be submitted and approved by December 2023. Its environmental impact statement (EIS) process — from notice of intent (NOI), public comment periods and final EIS publishing — will occur over the course of 2024 and 2025, and federal authorization for full development will occur in 2026. “The process to authorize full development reflects that stakeholders will be coordinated at the outset of project development. We welcome FAST- 41 building on the NEPA process of providing stakeholders with increased transparency, realtime information that is publicly available on the permitting dashboard, and multiple opportunities over the next few years to give feedback,” Risner said. “Since our inception, the Hermosa project has actively sought out, and has already incorporated, community feedback on the project’s planning and design.” “We are committed to working closely with the U.S. Forest Service, cooperating agencies, tribes and local stakeholders to develop this project in a way that benefits the community, minimizes impact on the environment and grows the economy,” Risner said. “We are in one of the poorest counties in the state that hasn’t had mining in a very long time, so it’s a huge opportunity to lift up a historically disadvantaged community and really improve people’s lives for generations.” The project is being designed as the first netzero mining operation as well as the first dry stack tailings facility in the United States. Part of that is a multilayered liner system that is low-moisture and feeds excess water into a water treatment plant. When in production, the Hermosa project will be one of the most advanced mines in the world. “We are designing Hermosa with low-carbon design principles with a pathway to get to net zero through the potential to power the mine with fully renewable energy and also planning for all batteryelectric fleets underground,” said Risner. “This really is a next-generation mining operation.”

Permitting challenges continue; Legislative efforts could provide relief

Authored by:
William Gleason

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