ST. PAUL— In yet another major blow for the proposed PolyMet copper-nickel mine near Hoyt Lakes, an administrative law judge is recommending that the Department of Natural Resources deny the company its all-important permit to mine for failure to comply with state mining rules. The DNR issued the permit back in 2018, but the company has seen most of its major permits rescinded by the courts for failure to comply with state or federal rules.
In a decision issued Tuesday by the Office of Administrative Hearings, or OAH, ALJ James LaFave found that the conditions included in PolyMet’s original permit to mine did not comply with the state’s rules pertaining to reactive mine waste, such as the sulfide-containing waste rock that would be produced by PolyMet’s proposed operations.
PolyMet had proposed to use a bentonite clay liner on the bottom and sides of its planned tailings basin, which the company proposes to build on top of the existing taconite tailings basin created by the former LTV Mining. Whether PolyMet’s proposal complied with state rules was brought before Judge LaFave after the Minnesota Supreme Court ruled last year that the matter should go to a contested case hearing at the OAH. LaFave presided over that hearing earlier this year and issued his findings and recommendations this week.
Judge LaFave agreed with PolyMet and the DNR that the bentonite clay has been shown to be an effective liner in similar circumstances, but concurred with environmental plaintiffs that the plan would, nevertheless, fail to comply with rules on treating reactive mine waste.
At issue was whether the bentonite liner was a “practical and workable” technique for addressing PolyMet’s mine waste. To comply with state rules, the method must either render the waste unreactive or must “permanently prevent substantially all water from moving through or over the mine waste.”
As LaFave noted, the bentonite clay was never intended to render PolyMet’s tailings unreactive. Instead, the clay liner was supposed to meet the rule by reducing seepage of water and air through the tailings in order to prevent the discharge of water that was contaminated through contact with the reactive rock. When exposed to air and water, reactive mine waste can allow the release of heavy metals and other pollutants into the environment.
While PolyMet and the DNR had concluded that the clay liner would substantially reduce the seepage of water through the mine waste, LaFave concluded that the volume of polluted water that the tailings basin would discharge into the environment was still substantial. LaFave noted that PolyMet acknowledged its plan would allow seepage of 160 million gallons of polluted water annually from the tailings pond, with an additional 138 million gallons of seepage from the tailings dam and beaches along the sides of the pond.
“This means that, by design, 298 million gallons of water will move through or over the tailings every year,” wrote LaFave.
While he agreed that that is a small percentage of the 32.1 billion gallons of water contained within the basin, he concluded that the amount discharged was still substantial. “298 million gallons is an enormous amount of impaired water,” wrote LaFave, who tried to put the scale in context. “For example, if 298 million gallons were measured in Olympic-sized swimming pools, the water would fill 451 pools. Lined up end-to-end, the pools would stretch for a distance of nearly 14 miles.” He further noted that 298 million gallons, if hauled by large tanker truck, would require 27,091 truckloads. Streteched end-to-end, he wrote it would form a convoy stretching 271 miles.
What’s more, the judge found that the bentonite liner would have the tendency to break down over time due to a number of environmental forces. Yet, according to PolyMet modeling, the mine waste the plant would produce would remain reactive for at least 500 years.
Next steps
Judge LaFave’s ruling does not require the DNR to take any specific action, since his findings of fact and recommendations are non-binding. But the ruling is likely to be influential in that the DNR would face substantial legal jeopardy were it to disregard the ALJ’s findings, which become part of the administrative record.
Should the DNR seek to comply with the ALJ’s recommendations, it would require additional testing of the bentonite liner or, more likely, would prompt the agency and PolyMet to look at different alternatives entirely, a process that could take years and many millions of dollars to pursue. The cost of an alternative solution could also render the PolyMet project uneconomical.
Reaction
Environmental plaintiffs in the case hailed the decision and used their latest legal win to urge Gov. Tim Walz to move to end the state’s backing of the PolyMet project. “It’s time for the Governor as well as Minnesota’s state agencies to take a hard look at whether it is time to pull the plug on the PolyMet mine project,” said Paula Maccabee, head legal counsel for Water Legacy, one of several plaintiffs in the case. “Glencore, the multinational owner of PolyMet that has been convicted of corruption and bribery, may be used to cutting corners and evading laws to enhance its profits. But this is not the right way to do business in Minnesota.”
Kathryn Hoffman, CEO of the Minnesota Center for Environmental Advocacy, urged the DNR to heed the ALJ’s recommendations.
“This is yet another repudiation of the permits issued to PolyMet and should be the final nail in the coffin of this failed proposal,” she said.
PolyMet spokesperson Bruce Richardson said the company is still reviewing the ALJ’s findings and recommendations and had no immediate comment.