REGIONAL— The Department of Natural Resources announced this week that it has initiated a contested case hearing to solicit testimony over the use of a type of clay as a tailings basin cap for …
REGIONAL— The Department of Natural Resources announced this week that it has initiated a contested case hearing to solicit testimony over the use of a type of clay as a tailings basin cap for the proposed PolyMet copper-nickel mine, near Hoyt Lakes.
In doing so, the agency opted for a narrow look at issues surrounding the proposed mine, rather than take the suggestion of the state’s Supreme Court to consider a wider range of issues in the planned hearing, which will go forward before an administrative law judge.
The high court ordered the hearing back in April when it decided one of several legal challenges to PolyMet’s permit to mine brought by a coalition of environmental and tribal litigants. The Supreme Court found that the DNR, which issued the permit to mine in November 2018, lacked sufficient evidence to support the use of bentonite clay as a tailings basin cap. The clay cap was proposed as a means of reducing or eliminating the discharge of highly acidic mine water from the tailings facility.
Experts hired by the DNR had raised doubts themselves about the feasibility of the clay cap, describing it as a “Hail Mary type of concept” and “unsubstantiated wishful thinking.”
Opponents of the mine had sued, arguing that the DNR should have held contested case hearings on several issues where they believed there were substantial factual disputes.
The high court, in its April ruling, had determined that the DNR had discretion to decline a contested case hearing over most of those issues. Yet, the court noted that the DNR had the authority to broaden the contested case hearing the court was ordering over the use of bentonite clay to include other issues that mine critics had raised. “DNR has the authority to identify the issues and scope of the contested case hearing,” noted the judges, “and may decide to address issues raised by this appeal regarding the legal sufficiency of the permits.”
The high court did not address the legal adequacy of the permit to mine, instead focusing on the DNR’s discretion to hold, or not to hold, a contested case hearing, so several issues that the high court sidestepped in its April decision are likely to come back before the court eventually. Additional findings on those issues from a contested case hearing could potentially aid appellate courts as they wade through those issues in the coming months and years.
Mine critics expressed disappointment in the DNR’s decision to limit the hearing to a single issue. “The DNR has once again side-stepped an opportunity to get additional information on issues of deep concern to Minnesotans,” said Kathryn Hoffman, CEO of the Minnesota Center for Environmental Advocacy, one of the lead plaintiffs in the case against the DNR. “These include the safety of the proposed dam, the plan to store polluted water and mine waste for hundreds of years after closure, and the risk to Minnesota taxpayers from cleanup costs. The Minnesota Supreme Court made it clear the DNR could have included all of these issues in this hearing, but DNR has chosen to exclude them.”
The contested case hearing will provide all of the parties involved, including environmental groups, PolyMet, and the DNR the opportunity to submit legal briefs, documents, and call and cross examine witnesses. The administrative law judge will then be tasked with drafting a report, which the DNR can then consider as it weighs a final decision on the issue of the clay cap. The process is likely to take several months to complete.
After that, the next steps remain hotly contested. DNR officials maintain that even if they choose to alter their permit, they can do so without a new permit application from PolyMet. Environmental lawyers contest that claim, arguing that the appellate courts reversed the permit to mine, which means it has effectively been wiped away, requiring a new application process. That is likely to be another issue that the parties will address in an upcoming court battle.
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