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PolyMet gets passing grade from EPA

Over 50,000 comments submitted to DNR; responding could a year or more

Marshall Helmberger
Posted 3/20/14

REGIONAL—Representatives of PolyMet Mining had reason to celebrate this past week, as they learned that the federal Environmental Protection Agency had given the company’s supplemental draft …

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PolyMet gets passing grade from EPA

Over 50,000 comments submitted to DNR; responding could a year or more

Posted

REGIONAL—Representatives of PolyMet Mining had reason to celebrate this past week, as they learned that the federal Environmental Protection Agency had given the company’s supplemental draft environmental impact statement a passing grade.

That’s a significant improvement over the rating the EPA issued to the initial draft EIS that the company released back in 2009. Back then, the EPA had issued its lowest rating, an opinion that prompted the company and the three lead agencies overseeing the process to restart the review effort.

“This rating demonstrates the significant improvements PolyMet has made to the project in response to previous public and regulatory comments,” said Jon Cherry, PolyMet president and CEO in a press statement issued late last week. “The EPA review provides feedback and guidance to the co-lead agencies for enhancements to finalize the environmental review process.  We will continue to work with the co-lead agencies to ensure they receive additional data or information that might be required to address the EPA’s comments,” Cherry said.

Despite the passing grade, the EPA’s 16-page comment letter still expressed a long list of concerns, additional questions, and recommendations for changes in the SDEIS before a final document is issued. The agency joined a number of tribal agencies, the Minnesota Health Department, and environmental groups in seeking additional information on financial assurance, water quality issues, cultural resources, and impacts to wild rice.

While the EPA’s past objections had placed a higher focus on the agency’s response to the latest version of the environmental study, it was just one of more than 50,000 comments submitted to the Minnesota Department of Natural Resources, one of three lead agencies overseeing the environmental review process.

Under state and federal environmental review rules, the three lead agencies— the DNR, the Army Corps of Engineers, and the U.S. Forest Service— must respond credibly to each of the comments as part of the completion of the final EIS.

The sheer magnitude of that effort is staggering, noted DNR Commissioner Tom Landwehr on Wednesday. “I think it’s the most we’ve ever gotten on any EIS,” he said. By contrast, in 2009, the first draft of the PolyMet EIS received about 10,000 comments, which required more than nine months to address. Landwehr acknowledged it will take many months to read through, categorize, and effectively respond to each of the comments received, although he said it probably won’t take that much longer than the first time around, despite five times as many comments. “Probably 49,900 of the comments are emailed and all say the same thing,” said Landwehr. “There are maybe 100 that have substantive comments and those will require more time.”

And a few of those comment submissions are vast in their own right. While the SDEIS itself, at approximately 2,200 pages, required four years and $22 million to produce, some environmental organizations submitted comments and supporting reports and exhibits of their own that total thousands of pages. The Minnesota Center for Environmental Advocacy, for example, submitted a 134-page letter of comment accompanied by reports from seven academics, and more than 100 separate exhibits, some of which entail hundreds of pages themselves.

Another prominent environmental group, known as Water Legacy, submitted a 191-page letter, more than 50 exhibits, and dozens of maps and other accompanying comment from several of its own experts.

Tribal entities, which served as cooperating agencies in the SDEIS process, also offered hefty comments. The Grand Portage Band submitted a 52-page comment letter, with nearly a dozen exhibits, while the Great Lakes Indian Fish and Wildlife Commission sent a 57-page letter of comment.

The deluge of comments and related material will likely keep officials with the DNR and other lead agencies busy for many months, and potentially longer, particularly if any of the comments prompt significant reanalysis, which is possible, given some of the issues raised in the comments. “It’s still a long haul,” Alexandra Klass, a professor of environmental law at the University of Minnesota, told the Star Tribune last week.

And if and when the final report is issued, a second, typically shorter, comment period is required under the law. Only after the reviewers respond to those comments, can the truly final report be issued.

Once that occurs, the state will then decide on the adequacy of the report, said Landwehr. “I want to be sure that we make folks understand, it’s not a given that the EIS will be found to be adequate,” he said.

And even if it is, the potential for a lengthy court battle still looms. “I certainly wouldn’t be surprised to see litigation,” said Landwehr. “There’s clearly a lot of concern around the project and the process. We’re taking the time to do it right, to do everything we need to do by law, and in order to ensure we have the right environmental protections in place. But litigation seems to be the reality around these kinds of things these days.”

Even if the state avoids a lawsuit, the issuance of a final EIS is still not the end of the road for the process. PolyMet will also need to apply for a long list of state and federal permits, all of which will involve some difficult decisions, including an agreement on how much money the company will need to pledge to pay for long-term water treatment at both the plant site and at the mine itself. How long such treatment will be required is unclear, in part because the SDEIS doesn’t specifically say. That’s a failing cited by the EPA and many agencies and organizations that have commented on the draft report. Whether the final environmental report provides more detail on that and many other issues raised by critics remains to be seen.