PolyMet opponents ask appeals court to overturn mine permits

PolyMet Mine
Eric Olson, right, gathers his tools in May as contractor Robert Radotich uses a backhoe to dig areas so the soil stratification can be observed, which will help them engineer and design the infiltration pods for the PolyMet copper-nickel mine in Hoyt Lakes, Minn.
Anthony Souffle | Star Tribune via AP file

Updated: 6:27 p.m.

Opponents of the proposed PolyMet project made their case Wednesday before the Minnesota Court of Appeals to overturn two key permits the state has granted to the company to build what would be the first copper-nickel mine in the state.

Attorneys for environmental groups and the Fond du Lac Band of Lake Superior Chippewa made three primary arguments against the northern Minnesota project, which would include a mine in Babbitt and a processing facility in Hoyt Lakes:

  • that the Minnesota Department of Natural Resources failed to finalize a plan for the mine’s tailings basin dam — the massive earthen dam that holds back a large pond of mine waste that’s been mixed with water and turned into a slurry — before approving it;

  • that PolyMet’s plan to close and reclaim the mine — which is a required part of the permitting process — violates state law;

  • and that the DNR should hold hearings on the project before a neutral administrative law judge.

The groups argue that the regulatory process has been insufficient.

“DNR’s position can be summed up this way,” said Minnesota Center for Environmental Advocacy attorney Ann Cohen. “Trust it to fix the vague and incomplete plans. Trust it to fix the vague permit terms. Trust it to fix things later. It is not legal for DNR to issue a permit on the basis of hope.”

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The DNR and PolyMet counter that the project underwent an extensive 14-year review, in which concerns raised by experts and mining opponents were incorporated into the final permits. They also argued that state law allows for flexibility in approaches to closing the mine, as long as it meets water quality standards.

“The record here establishes that DNR’s efforts were unprecedented,” said agency attorney Jon Katchen. “An extraordinary amount of time and resources were devoted to this project to ensure that it complied with the law.”

Also at issue in the hearing was whether the three-judge panel should extend a stay on the permits that the court issued last month. When the court put the pause in place,it asked the DNR for more information on how it has responded to two major developments that happened since it first approved the permits.

In January, a tailings dam failed at the Brumadinho iron ore mine in Brazil, killing more than 200 people and causing catastrophic damage in the surrounding area. The tailings basin at the Brazilian mine followed the same design as PolyMet has proposed building at its mine. And in June, Swiss commodities giant Glencore acquired a majority stake in PolyMet.

Dozens of mining opponents packed into the small courtroom to witness the arguments. If PolyMet survives this and other legal challenges and is able to raise the $1 billion in capital that it will need to build the mine, the project would be the first copper-nickel mine in the state.

Opponents fighting the PolyMet project say it’s a risky, unproven type of mining in Minnesota that threatens the water quality of lakes and streams in the state’s pristine northeastern forests. But proponents argue it will create hundreds of high-paying jobs, and pump millions of dollars into the region’s natural resource-based economy.

Glencore’s role in question

DNR attorney Jon Katchen only spoke for 15 seconds before Chief Judge Edward Cleary interrupted him, saying he wanted to get to the heart of the matter. “Has Glencore agreed to become a co-permittee on the permits?” he asked.

Katchen said that’s still an “ongoing process.” Glencore acquired a 72 percent stake in PolyMet in June. Since then, Katchen said the DNR has asked for additional information to help the agency decide whether Glencore’s involvement with PolyMet meets the state’s threshold that would require the company to be named on the permit, alongside PolyMet.

Cleary also pressed PolyMet and the DNR on the makeup of the company’s financial assurance package — the money PolyMet is required by law to set aside to finance closing and cleaning up the mine if it were to go bankrupt.

Katchen and PolyMet attorney Jay Johnson said the company would not be allowed to move on with construction until robust financial assurance requirements are in place.

Another key issue the judges raised is the length of time PolyMet will be required to treat water at the site after the mine is closed.

Attorneys for environmental groups argued the DNR’s permits allow for treatment of polluted water at the mine site for potentially hundreds of years. MCEA attorney Cohen argued that violates state rules, which stipulate that mines have to be reintegrated into the surrounding landscape within three years after they’re closed.

“There is nothing in this record that indicates that we will not have a [tailings] pond for 900 years,” she said.

The DNR and PolyMet argued that state rules allow for flexibility in meeting that reintegration target. Johnson said the permit gives a target date of 2072 to completely reclaim PolyMet’s mine site.

“PolyMet, from its perspective, will be highly motivated to make this reintegration happen as quickly as possible, because treating the water actively is very expensive,” he said.

Still a long shot

After the hearing, attorneys for the environmental groups briefed their supporters who were there to watch the hearing.

“It’s clear the judges are concerned,” said WaterLegacy attorney Paula Maccabee, “Did the DNR take into account all the facts and all the evidence? And also, are taxpayers adequately protected, without having Glencore on the permit?”

MCEA attorney Ann Cohen, who worked for the Minnesota Pollution Control Agency for more than three decades before joining the environmental group last year, agreed, but said the case is still a long shot.

“It always is, when you’re fighting a state agency that’s really beating the drums,.” she said. “But I think we got their attention, and I’m hoping that they’ll just do their job and apply the law.”

Nancy Norr, chair of the pro-mining group Jobs for Minnesotans, said the PolyMet project is vital to diversifying the economy of northeast Minnesota. She said the regulatory process has been robust.

“But I’m very confident that our previous commissioner of the DNR, as well as the staff that continues to work day over day to assure that the public’s interests are protected, are doing a fabulous job,” she said.

The appeals court has 90 days to issue a ruling on the case. It’s expected to decide much sooner on whether to extend the stay it granted last month on PolyMet’s permit to mine and dam safety permits.