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Environmental groups petition for PolyMet hearings

A PolyMet executive explains how the company will use rod mills to crush metal-bearing rock as part of the process of extracting copper, nickel and other metals from the mine. (2013 file / News Tribune)

Three Minnesota environmental groups on Wednesday petitioned the state for so-called contested case hearings on permits for the proposed PolyMet copper mine, saying critical details of the mining plan need review by a neutral, third-party arbitrator.

The Minnesota Center for Environmental Advocacy, Center for Biological Diversity and Friends of the Boundary Waters Wilderness submitted the petition to the Minnesota Department of Natural Resources over PolyMet's permit to mine, which they called "an environmental disaster waiting to happen."

The petition, which was expected, asks for specific changes to the PolyMet draft permit to mine or, if the DNR doesn't require the changes, a contested case hearing process.

The DNR is accepting comments through Tuesday on the proposed mine permit that lays out details of how PolyMet would build the mine, dig and process the ore for 20 or more years, keep any pollution out of area waters and then reclaim the location when mining is done.

Other groups also are expected to petition for the hearings, saying the DNR has an inherent conflict of interest because of its dual role both promoting mining and protecting the environment.

A contested case hearing is overseen by an administrative law judge to evaluate disputes about material issues of fact in a permit decision. The judge's decision is then submitted back to the regulatory agency. Contested case hearings are commonly used for complex state permit issues, such as pipelines, power lines and power plants, but also are allowed for mining issues.

"Before making a decision on the PolyMet permit, a full, fair, and fact-based hearing is needed so the DNR commissioner can make a decision that protects Minnesotans," stated Kevin Lee, senior attorney at MCEA. Lee said both DNR "employees and outside experts have raised serious concerns about the safety of PolyMet's mine plans, particularly the mine waste dam."

But PolyMet spokesman Bruce Richardson said state and federal regulators already have done a thorough review of the proposal, both during the environmental review and, more recently, as specific permits have been drafted. He said both processes already allowed ample public input.

"The environmental review for the PolyMet NorthMet Project was the longest and most comprehensive review ever conducted in Minnesota. The co-lead agencies were deliberate and thorough in their scientific, independent review, which provided numerous opportunities for public involvement, and which earned the highest grade ever given by the U.S. EPA for a mining project of this type," Richardson said in a statement. "... It's for these reasons and more that we have every confidence that Minnesota's water and other natural resources will be protected and the project can deliver on its promise of jobs and economic prosperity for the region."

The petition from the environmental groups identifies eight areas where material issues of fact are in dispute, that the groups say must be resolved prior to a decision on the permit to mine, including:

• Dam safety: The groups claim that state rules do not allow mine waste and water to be permanently stored behind a dam, but that would be allowed by the PolyMet draft permit. The petition states that wet mine waste storage is "a thing of the past, a dangerous relic of a form of mining undertaken before the passage of environmental protection laws ... The Permit to Mine Application now before the DNR thus poses the worst of all worlds: the maintenance of a permanent tailings lake that severely compromises long-term dam stability, by using a water retention barrier that is unlikely to work." The petition concludes that this approach is "an environmental disaster waiting to happen."

• Financial assurance: The groups say the DNR "has failed to require an updated cash flow and financial feasibility analysis from PolyMet, which makes the financial assurance that is supposed to protect Minnesota taxpayers vulnerable. One expert report ... finds that during Year 9 of the mine plan, 72 percent of PolyMet's projected income would be dedicated to financial assurance costs, primarily in the form of the ramped up trust fund contributions." The groups add that in the 15th year of mining "PolyMet is projected to be cash flow negative: PolyMet will not produce enough revenue to pay for its financial assurance obligations."

• Vagueness and unenforceability: The groups allege that, "instead of providing plans that require action by PolyMet, the application references many plans that either haven't yet been written or do not provide clear, enforceable guidance to PolyMet and the DNR. The petition identifies 19 plans or submittals required as part of the permit to mine that are not provided for public review as part of the application."

DNR Commissioner Tom Landwehr can order a contested case hearing on his own, can accept a petition for the hearing or can deny that a hearing is necessary. State law appears to require a decision within 90 days of the petition. Groups can appeal that decision to the Minnesota Court of Appeals.