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Groups seek judge’s review on PolyMet Permit to Mine

Marshall Helmberger
Posted 3/8/18

REGIONAL— At least four environmental organizations are asking the Department of Natural Resources to complete a contested case hearing before rendering a verdict on the proposed Permit to Mine for …

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Groups seek judge’s review on PolyMet Permit to Mine

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REGIONAL— At least four environmental organizations are asking the Department of Natural Resources to complete a contested case hearing before rendering a verdict on the proposed Permit to Mine for PolyMet’s planned copper-nickel mine near Hoyt Lakes.

The Minnesota Center for Environmental Advocacy, the Center for Biological Diversity, and the Friends of the Boundary Waters Wilderness submitted a joint petition to the agency last week that seeks several significant changes to the proposed permit, or a contested case hearing if the DNR denies the proposed alterations. The Duluth-based group Water Legacy filed a separate petition asking the DNR to deny the permit to mine outright, or hold a contested case hearing on the proposed permit.

A contested case hearing is a hearing run by an administrative law judge to evaluate disputes about material issues of fact in a permit decision. Contested case hearings are commonly ordered to evaluate complex factual issues, and are requested by parties on all sides. For example, U.S. Steel recently requested a contested case hearing on a permit for the Minntac mine.

 “Before making a decision on the PolyMet permit, a full, fair, and fact-based hearing is needed so the DNR commissioner can make a decision that protects Minnesotans,” stated Kevin Lee, Senior Attorney at MCEA. “As we’ve examined the record, we’ve found Minnesota Department of Natural Resources employees and outside experts have raised serious concerns about the safety of PolyMet’s mine plans, particularly the mine waste dam.”

While not addressing the contested case hearing request directly, PolyMet officials argue that the environmental review and permitting process, which has taken more than a decade, has been remarkably thorough. “The environmental review for the PolyMet NorthMet project was the longest and most comprehensive review ever conducted in Minnesota,” said PolyMet spokesperson Bruce Richardson. “The same thoroughness that went into the development of the environmental review was applied in the preparation and drafting of the permits, which also have been open to public review and comment,” added Richardson. “It’s for these reasons and more that we have every confidence that Minnesota’s water and other natural resources will be protected and the project can deliver on its promise of jobs and economic prosperity for the region.”

Differing views among experts

Along with the petition for the contested case, the environmental groups submitted six expert reports analyzing the PolyMet draft permit to mine from mine engineers, geochemists, geophysicists, and hydrologists. The petition identifies eight areas where material issues of fact are in dispute and must be resolved prior to a decision on the permit to mine. Specific examples include questions over dam safety, financial assurance, and the enforceability of the permit due to lack of specific requirements.

Attorney Paula Maccabee, who represents Water Legacy, is equally concerned that the proposed mine permit has failed to address the risks of seepage of contaminated water from the tailings basin into surface streams and wetlands as well as groundwater.

PolyMet proposes to utilize the former LTV tailings basin and Maccabee argues that it has the same potential for seepage as other tailings basins, such as the Minntac basin, which is currently contaminating both surface and groundwater surrounding the basin. According to Maccabee, PolyMet acknowledges that its tailings basin is expected to seep about two billion gallons of water per year, but the company claims that about 99.5 percent of it will be collected and treated. Maccabee said that claim is based on assumptions that don’t hold up to expert scrutiny and that this would be one of several issues that a contested case hearing could help resolve.

Maccabee said the contested case process, which is handled by the Office of Administrative Hearings, has shown itself to be a valuable process. She said the recent decision on the proposed wild rice sulfate standard is a case in point.

“Before the wild rice administrative process, I had been very skeptical that a contested case hearing was worth the effort, but what I saw in the wild rice hearings an ALJ [administrative law judge] who was intelligent and rigorous and who really looked at the information for herself.”

Maccabee said a number of experts, including some with the DNR, see problems with the PolyMet proposal, but that the decision-making appears to be driven more by political concerns. She said a contested case would put the emphasis back on the science surrounding the project. “My view is this project will look much different to an independent finder of fact, rather than the DNR, which has been told from the top-down to approve this,” she said.

Environmentalists are also seeking a time limit for the permit to mine, since without a time limit, the permit and its conditions would be perpetual. The groups note that under Minnesota law, a permit to mine is irrevocable during its term, so an unlimited permit to mine could not be revoked. State regulators would have the ability to revoke other permits if the company were in chronic violation, although such a move would be politically fraught once the mine is operational and mining jobs would be at risk.

A contested case hearing is different from the usual public comment period that is a part of most regulatory actions. The hearing is typically more formal, and can be similar to a trial, with witnesses providing testimony under oath, and with the opportunity for cross examination.

The DNR, as the lead regulator, has the right to seek a contested case process on its own, although the agency has not done so to date. The DNR now has the right to deny the contested case requests entirely or limit the inquiry to certain issues. Should the DNR deny the contested case, the environmental groups would have the option to challenge the decision in the state Court of Appeals, which could also order such a process.

The public comment period on the proposed permit to mine ended on Tuesday, March 6. The DNR has given no indication when it might actually issue a permit to mine.

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