Both sides claim victory in complicated PolyMet court ruling

A basin
Plans for PolyMet include building dams to increase the storage capacity of tailings basins. One would be built in the distance to raise the basin on the right to the level of the area on the left.
Steve Kuchera | Duluth News Tribune 2017

Updated: 3:51 p.m.

Both sides claimed victory Wednesday after the state Supreme Court issued a complex ruling over state permits for the proposed PolyMet copper-nickel mine in northeastern Minnesota. 

Environmental groups and the Fond du Lac Band of Lake Superior Chippewa were quick to celebrate the ruling, saying the decision “hits the reset button” on the proposal, which would be the first non-iron ore mining operation built in northern Minnesota. 

In a 48-page ruling, the court upheld the Minnesota Court of Appeals’ reversal of the Department of Natural Resources’ decision to grant a critical "permit to mine." The appeals court said the state agency failed to set a fixed term for the permit and it ordered the DNR to set an appropriate term.

In another part of the ruling, the court sent a dispute over the mine's waste management plan back to the DNR for what's known as a "contested case hearing" on whether the mine's tailings pond would effectively keep pollution contained. 

But the court's ruling rejected calls from PolyMet opponents for a broader contested case hearing on several other issues, concluding “that the DNR did not abuse its discretion” in denying those requests “because substantial evidence supports those decisions.”

The Supreme Court also said the appeals court erred when it reversed two dam safety permits for the project. It ruled that the DNR adequately addressed concerns such as the design of the tailings waste dam.

ltv
The closed LTV Steel taconite plant remains abandoned near Hoyt Lakes, Minn. The site, which closed in 2000, could see new life as a part of Minnesota's first copper-nickel mine owned by PolyMet.
Jim Mone | AP Photo file

What’s next for the PolyMet project? 

In the short term, PolyMet’s permit to mine — the primary permit granted by the Minnesota DNR giving the company authority to build and operate the mine — now heads back to the agency for further proceedings. 

First, the agency will conduct a contested case hearing — a trial-like hearing held before an administrative law judge — on a fairly narrow technical aspect of the mine’s tailings basin, which holds a slurry of water and mine waste left over after the mining and processing of the ore. 

The justices held that the DNR must gather more information on whether PolyMet’s plans to line the waste basin with a kind of clay known as bentonite will work as intended to prevent water and oxygen from infiltrating to create a severe form of pollution known as acid mine drainage. 

PolyMet considers that a minor issue: “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,” the company said in a statement. 

But Kathryn Hoffman, CEO of the Minnesota Center for Environmental Advocacy, questions why PolyMet hasn’t already provided evidence backing the use of bentonite. 

“If PolyMet has data to support this, they didn't give it to the DNR. They didn’t provide it in court. Why wouldn't they put it in as part of this 15- or 16-year process?” she said.

Hoffman also said that the DNR could decide to broaden the scope of the contested case hearing to include other issues, such as whether Glencore, PolyMet’s parent company, should be listed on the permit.

Contested case hearings often take about a year to complete, but it’s unclear whether this hearing will take that long. Deputy DNR Commissioner Barb Narramore said only it would take at least several months. 

In the meantime, Naramore said, PolyMet’s permit to mine is on hold.

Secondly, after a contested case hearing is complete, the Supreme Court decision requires the DNR to place a “definite term” on the permit to mine.

Currently, the permit issued to PolyMet states that mining and reclamation of the mine site would “be completed in approximately the year 2072,” but also stipulates that water treatment would continue at the site until it meets the state’s water quality standards. PolyMet’s modeling suggests post-closure maintenance will likely be needed for at least 200 years. 

The Supreme Court agreed with PolyMet opponents that the permit violated state law because it didn’t include a fixed end date. 

Paula Maccabee, counsel for WaterLegacy, said in doing so, the court essentially reversed the permit to mine. 

“The specific grounds that they used were that the DNR could not issue PolyMet a ‘forever permit,’ and fail to deal with the problems of permanent toxic pollution and indefinite closure” she said. “Basically, the permit went bust.” 

The DNR’s Barb Naramore disputes that characterization. She said they wrote the permit using a more flexible, “performance-based” approach to determine the final date of mine closure.  But she believes the DNR “can take an approach with a fixed term that would ultimately get us to the same place.” 

Ultimately, the DNR’s commissioner would again need to approve the PolyMet permit to mine, and would again be subject to possible lawsuits. 

PolyMet celebrates ruling 

While the permit to mine now heads back to the Minnesota DNR for further proceedings, which will mean at least a several month delay for PolyMet, the company largely praised the ruling. 

That’s because the court rejected calls for a broad contested case hearing on a number of issues raised by PolyMet opponents.” 

While the court supported a contested case hearing on the bentonite liner of the tailings basin, it overturned the lower court’s call for a hearing analyzing several other issues, including the design of the tailings basin dam, different options for mine closure, and the financial assurances the company is required to provide in the event of bankruptcy. 

The Supreme Court also reinstated two dam safety permits PolyMet needs to operate the mine, which had been overturned by the appeals court. 

“The claims of a “win” by opponents of our project simply do not withstand scrutiny,” said PolyMet spokesperson Bruce Richardson. 

In the meantime several other key state and federal permits remain tied up in litigation. And mine opponents vow to continue fighting the project. 

“The Band is not opposed to mining, just irresponsible mining, and we will continue to advocate and fight to ensure that the waters, natural resources and environment are protected,” said Fond du Lac Tribal Chairman Kevin Dupuis.

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