Serving Northern St. Louis County, Minnesota

Attorney: Permitting PolyMet would violate federal law

Maccabee says failure to limit environmental impacts disqualifies project as currently designed

Marshall Helmberger
Posted 12/16/15

REGIONAL—Federal regulators may have gotten their first look at what a legal challenge to PolyMet Mining’s proposed copper-nickel mine might look like.

In a detailed submission to the U.S. …

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Attorney: Permitting PolyMet would violate federal law

Maccabee says failure to limit environmental impacts disqualifies project as currently designed

Posted

REGIONAL—Federal regulators may have gotten their first look at what a legal challenge to PolyMet Mining’s proposed copper-nickel mine might look like.

In a detailed submission to the U.S. Army Corps of Engineers and the Environmental Protection Agency, attorney Paula Maccabee argues that the project, as proposed, is not permissible under federal law.

While the public has been focused in recent weeks on the adequacy of the Final Environmental Impact Statement, Maccabee, who serves as legal counsel for St. Paul-based Water Legacy, said PolyMet’s failure to modify its project to limit its environmental impacts generally disqualifies its proposal from federal permitting, regardless of whatever decision the state’s Department of Natural Resources ultimately makes on the FEIS.

“We have shown that the PolyMet project doesn’t comply with Clean Water Act Section 404 regulations,” said Maccabee in a press statement issued Monday. “It would violate the law protecting wetlands, downstream fish and downstream human health to give this sulfide mine project a permit.”

Maccabee’s submission, which includes an 80-page brief and hundreds of pages of supporting documents, outlines what Maccabee sees as an overly cozy relationship between PolyMet and state and federal regulators, who failed to hold the company to the standards required by federal law. In effect, she said, the DNR and its co-lead federal agencies acted more like project partners than neutral regulators, and allowed too many of PolyMet’s assumptions to go unchallenged in any meaningful way.

According to Maccabee, regulators failed to require that the company use the least environmentally damaging practicable alternatives as part of its mine plan, even though that’s required in federal law. She said the possibility of an underground mine, or the use of environmentally-safer tailings disposal methods, were never seriously analyzed. In addition, Maccabee said, water quality impacts and inadequate mitigation for hundreds of acres of wetland destruction violate federal law.

Maccabee’s submission isn’t a lawsuit. Instead, it’s directed at federal regulators as they begin the administrative process of determining whether to issue the permits that PolyMet will need before it could begin construction on the proposed NorthMet mine. But Maccabee’s submission demonstrates some of the legal arguments that could well be made in court in the event that the Army Corps of Engineers ultimately issues the wetlands permits that PolyMet will need. Opponents of the mine wouldn’t have cause to sue until those permits are approved.

Opposition likely on federal level

Tribal and environmental opposition to PolyMet is likely to focus at the federal level, where environmental groups have a better track record in challenging agency decision-making. Federal courts are typically viewed by environmental advocates as less subject to the kind of state and local political pressure that can make state court challenges difficult.

While the Minnesota Department of Natural Resources was the primary agency leading development of the FEIS, the involvement of the U.S. Forest Service and the Army Corps of Engineers as co-leads on the review, has made a federal challenge of the project increasingly likely.

While Maccabee, in a separate filing, is challenges the adequacy of the FEIS, her broader case goes beyond that relatively narrow question, by challenging the project on more fundamental grounds. “This is where the rubber hits the road,” she said. “There are substantive problems with this project that I think make it impermissible.”

While much of the debate over the FEIS has centered on relatively technical concerns, Maccabee said topics like destruction of wetlands, mercury contamination, proper tailings disposal are not “abstract issues.”

Maccabee said she is hopeful that federal regulators will recognize the problems with the project, as currently proposed, and will seek changes before approving any permits, thus avoiding litigation. “It’s the regulators’ job to follow the law, not wait until someone sues them,” she said.

Maccabee’s latest submission comes four months after she filed a federal petition asking the EPA to assume authority for regulating Minnesota’s metallic mining industry. EPA officials are currently considering Maccabee’s petition.

The Timberjay sought comment from PolyMet Mining officials for this story, but company officials did not respond prior to deadline.

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