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Serving Northern St. Louis County, Minnesota

PolyMet waste plan vetted in courtroom

Marshall Helmberger
Posted 3/29/23

REGIONAL— The fate of the proposed PolyMet copper-nickel mine could literally come down to clay. That’s the issue at the heart of a contested case hearing that got underway in St. Paul, …

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PolyMet waste plan vetted in courtroom


REGIONAL— The fate of the proposed PolyMet copper-nickel mine could literally come down to clay. That’s the issue at the heart of a contested case hearing that got underway in St. Paul, on Monday and is expected to wrap up by Friday, after the Timberjay’s Wednesday press time. It comes nearly two years after the state’s Supreme Court ordered the hearing to examine whether the use of bentonite clay as a kind of cap on PolyMet’s planned tailings basin would actually prevent the acid rock drainage that has been at the heart of environmentalists’ concerns over the project.
The contested case is a trial, of sorts, that has included testimony from experts and the submission of voluminous documents, which administrative law judge James Lefave will need to sort through before making what could be a make-or-break decision for the planned mine near Hoyt Lakes.
While the issue might seem a minor one, it’s all part of a complex puzzle that the Department of Natural Resources and PolyMet assembled in an effort to address the various protections set forth in Minnesota law.
Environmentalists argue this piece of that puzzle won’t work, and if the judge agrees it could force a major and time-consuming reworking of the PolyMet proposal.
Under state law, the DNR must select a means of containing reactive mine tailings, such as that expected to be generated by the PolyMet project, that is “both practical and workable,” although the law does not define the meaning of those terms. The bentonite cap is supposed to prevent water and air from reaching the tailings following closure of the mine, which would limit the discharge of acidic water that would otherwise be generated as oxygenated rainfall and snowmelt filters through the tailings.
Environmental groups had asked the high court to order a contested case hearing on other issues as well, including the project’s tailings dam construction, financial assurance, and the role of PolyMet’s majority owner, Glencore, an international commodities company with a checkered history. But the Supreme Court determined that the DNR had acted within its discretion on those issues by rejecting a contested case hearing.
On the use of bentonite clay, however, the court sided with litigants Water Legacy, the Minnesota Center for Environmental Advocacy, Friends of the Boundary Waters, and the Fond du Lac Band, in concluding that the DNR’s approval of PolyMet’s proposal 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 back in April of 2021.
“Basically, the court held that the DNR had no substantial evidence that bentonite would work to prevent acid mine drainage,” said Paula Maccabee, chief legal counsel for Duluth-based Water Legacy.
Environmental critics had noted during arguments at the Supreme Court 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 an earlier Court of Appeals decision, which sided mostly with opponents of the mine. 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 hearing is significant because it provided the first opportunity for critics of the proposal to directly challenge the evidentiary basis for the decision to allow the use of bentonite clay. Maccabee said PolyMet’s proposal is more “a concept” than an actual plan. “They have no probative evidence that it will work,” she said.
In short, this week’s hearing presents high stakes for both sides. “This means that, for the first time, MCEA [Minnesota Center for Environmental Advocacy] and our partners will be able to cross-examine PolyMet and DNR’s witnesses under oath about the facts underlying this permit,” said Aaron Klemz, chief strategy officer for MCEA. “This is truly worth underscoring - after 17 years of environmental review and permitting, Minnesotans will finally be able to see expert claims on the PolyMet proposal subjected to cross examination in front of a neutral decision maker.”
PolyMet officials dispute the claims of environmentalists and the tribe and have expressed confidence that a contested case won’t alter the final decision about the company’s right to mine— yet they do agree with environmentalists that the hearing is a weighty one. “The significance of this hearing is that one of the key remaining issues related to the Permit to Mine is finally nearing conclusion,” said company spokesperson Bruce Richardson. “It’s been four years since the permit was originally issued so we’re pleased that this single issue of how bentonite will be used at the tailings basin will finally be heard.  The DNR spent years studying this issue during the environmental review and permitting process and concluded bentonite was a safe and effective method for closure of the tailings basin. We believe the science is strongly in our favor on this issue and are confident the permit will ultimately be reissued.”
The administrative law judge won’t have actual authority to overturn any DNR decision on whether to move forward with the mine project. Instead, he’ll issue findings and likely recommendations to the agency based on his conclusions. Yet should the judge raise questions about the validity of using bentonite to prevent acid rock drainage from the tailings pile, it will put enormous pressure on the DNR and PolyMet to come up with another plan, and that could force a major reworking of the many connected components that make up the complex puzzle of the mine plan. Otherwise, both entities would almost certainly quickly find themselves back in court with an even weaker hand to play.
Indeed, while the administrative law judge’s findings will be critical, it is almost certain that they won’t be the last words on this issue. His findings, and any decision the DNR might make based on them, will likely be aired once again at the state’s Court of Appeals and, potentially, at the state’s Supreme Court.
Other permits remain suspended
Whatever the outcome of this week’s hearing, the path to final permitting for the PolyMet project remains unclear. The project’s wastewater discharge permit, which was reversed by the Court of Appeals, remains in limbo following oral arguments at the Supreme Court this past November. A decision in that case is expected later this year.
Meanwhile, the federal wetland filling permit issued by the Army Corps of Engineers in 2019, was withdrawn in 2021 under a challenge by the Fond du Lac band. The project air emissions permit remains suspended awaiting a technical decision by the Supreme Court. And the DNR must still address the issue of an end date to PolyMet’s permit to mine.


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