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Both sides claim PolyMet win

High court offers mixed verdict; suspends permit to mine, orders contested case hearing

Marshall Helmberger
Posted 4/28/21

REGIONAL— Both sides were claiming victory on Wednesday after the Minnesota Supreme Court delivered a mixed verdict on key permits for the proposed PolyMet copper-nickel mine near Hoyt …

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Both sides claim PolyMet win

High court offers mixed verdict; suspends permit to mine, orders contested case hearing

Posted

REGIONAL— Both sides were claiming victory on Wednesday after the Minnesota Supreme Court delivered a mixed verdict on key permits for the proposed PolyMet copper-nickel mine near Hoyt Lakes.

The high court reversed parts of the ruling issued by the Court of Appeals back in January 2020, which had ordered a contested case hearing on disputes over the method of tailings dam construction, financial assurance, and the role of PolyMet’s majority owner, Glencore, in the permitting process. The high court found that the Department of Natural Resources had acted within its discretion when it denied a request by the groups Water Legacy, the Minnesota Center for Environmental Advocacy, the Fond du Lac Band, and others, for a contested case hearing to present evidence contrary to the DNR’s position on the permits in question. That finding means a contested case hearing won’t be required to address those issues.

“This is a big win for PolyMet, our supporters, and for industry in Minnesota,” said Jon Cherry, chairman, president and CEO in a statement issued following the ruling.

The Supreme Court, however, did agree with the lower court that the DNR had erred by not placing a finite time limit on PolyMet’s permit to mine, a decision which puts that permit on hold until further proceedings. They also concurred on the need for a contested case hearing on the use of bentonite on the planned tailings basin.

“This isn’t a trivial issue,” said Paula Maccabee, legal counsel for Water Legacy. “Bentonite application is the way in which PolyMet proposed to prevent acid mine drainage from reactive tailings waste.”

The high court agreed that the proposal to use bentonite, a type of clay, in order to prevent water infiltration into waste rock, was not backed by science. “Further, the single study on which nearly all the DNR’s findings of effectiveness are based, is not in the record,” wrote Justice Natalie Hudson, who drafted the high court opinion.

Environmental critics had noted that even the DNR’s own consultants had raised concerns about the use of bentonite, calling the DNR’s conclusions “wishful thinking” and “unproven,” which were facts noted in the Court of Appeals decision. Most notably, one DNR consultant stated: ‘The bentonite seal is a Hail Mary type of concept in my opinion. I believe it will exacerbate erosion and slope failure and will eventually fail.”

Maccabee said this week’s decision on the use of bentonite is a critical legal issue. “Basically, the Court held that the DNR had no substantial evidence that bentonite would work to prevent acid mine drainage,” she said.

But PolyMet officials expressed confidence that a contested case won’t alter the final decision about the company’s right to mine. “The DNR has spent years studying the bentonite cap issue that will be considered in a contested case and PolyMet looks forward to presenting that evidence in a hearing,” stated a company release. “When DNR completes the contested case process, it can re-issue the permit to mine.”

The DNR’s failure to set a finite term for the PolyMet permit is another issue that could be tougher to resolve than it might first appear, according to Maccabee. “This is especially important because setting a fixed term will require the DNR to grapple with several unsolved issues of the PolyMet mine proposal, including permanent toxic pollution and failure to develop a closure and reclamation plan,” she said.

While the high court reversed some earlier victories for environmentalists, siding with the Court of Appeals on two issues virtually guarantees months, if not years, of additional delay for the proposed mine. It is also likely to increase the pressure on Gov. Tim Walz to address a string of court failures by state agencies now under this control.

“Today, the Supreme Court hit the reset button on PolyMet,” said Kathleen Hoffman, CEO of the MCEA. “Now, it’s up to Gov. Walz and his agencies to make better decisions and protect Minnesotans and the water they depend on.”

The DNR, in its own statement, declined to declare victory, but did note that the court’s decision upheld the agency’s decision-making process on most issues. “The court found ample evidence in the permit records to support the DNR’s decisions on the critical issues of dam safety and tailings basin closure,” noted the agency in a statement.  “The court further found that the DNR did not need to hold a contested case hearing on financial assurance or whether Glencore was required to be on the permit to mine at the time of permit issuance. We will carefully review and implement the court’s instructions regarding establishing a fixed term for the permit to mine and granting a contested case hearing on whether bentonite is a practicable and workable technology to reduce oxygen infiltration into the project tailings,” concluded the DNR statement. 

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