DNR Initiates Contested Case Hearing Process Regarding PolyMet Permit to Mine
Today, the Minnesota Department of Natural Resources (DNR) initiated a contested case hearing on PolyMet’s NorthMet mining project, as directed by the Minnesota Supreme Court. Specifically, the DNR has issued a Notice of Hearing to the parties involved in the litigation regarding the permit to mine for the project. Consistent with the Court’s opinion, the hearing will examine whether the use of bentonite clay to reduce oxygen and water infiltration into the proposed tailings basin is a practical and workable reclamation technique that, in conjunction with other engineering controls, collection and treatment, monitoring, and inspection requirements, will satisfy the DNR’s reactive waste rule Minn. R. 6132.2200, subp. 2(B).
Background
On November 1, 2018 the DNR issued a permit to mine to PolyMet for the NorthMet mining project and denied requests for a contested case hearing on the permit. The Fond du Lac Band of Lake Superior Chippewa, Minnesota Center for Environmental Advocacy (MCEA), Friends of the Boundary Waters Wilderness, and WaterLegacy appealed the DNR’s permit to mine decision to the Minnesota Court of Appeals. All but the Fond du Lac Band also appealed the DNR’s denial of a contested case hearing. The matter was eventually considered by the Minnesota Supreme Court, which issued its decision on April 28, 2021.
In its ruling, the Court upheld the DNR’s decision to deny a contested case hearing on a number of the issues raised on appeal, including the design of the flotation tailings basin dam, the use of a wet closure method at the basin, whether bentonite is an available technology, and the impact of the use of bentonite on dam stability. The court found that the DNR’s findings on these issues were supported by substantial evidence in the record.
The Court did, however, order the DNR to hold a contested case hearing on a single issue: whether the bentonite amendment at the tailings basin “is a practical and workable reclamation technique that will satisfy the DNR’s reactive waste rule Minn. R. 6132.2200, subp. 2(B).” Bentonite is a natural clay sealant that PolyMet intends to use as part of the construction of the tailings basin to reduce the amount of water and oxygen that reach the tailings. Limiting exposure to oxygen and water is an environmental protection measure that helps prevent the oxidation of waste materials.
The contested case hearing will provide MCEA, Friends of the Boundary Waters Wilderness, WaterLegacy, PolyMet and the DNR an opportunity to present evidence, cross-examine witnesses, and submit evidence and argument before an Administrative Law Judge (ALJ) on the bentonite amendment issue identified in the hearing notice.
After the completion of the contested case hearing, the ALJ will consider the record and prepare a recommendation to the DNR regarding the disputed issue. The DNR will then provide all parties an opportunity to submit exceptions to the ALJ’s report and, after consideration of the ALJ’s report and the exceptions, will make a final agency decision on the disputed issue.
Additional Ongoing Work on the Permit to Mine
The April 28, 2021 Supreme Court decision also required DNR to set a fixed term (end date) for the permit to mine. The DNR is currently considering how best to incorporate a fixed term and will seek public input on draft term language for the permit to mine at a later date. This is a separate matter from the contested case hearing regarding the bentonite amendment.
The DNR also continues to evaluate whether Glencore should be added as a permittee to the permit to mine for the NorthMet project. This decision will also be made separately from the contested case hearing process.
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