Everything you need to know about the PolyMet contested case hearing
Seven Beaver Lake and the beginning of the St. Louis River, just upstream from the PolyMet mine proposal Photo credit: Rob Levine
Aaron Klemz, MCEA St. Paul Office
The long-awaited contested case hearing on the PolyMet permit to mine is upon us. MCEA attorneys have worked for two years to prepare for this moment, much of which was spent consulting world-class experts who will testify at the hearing about the risks of the PolyMet sulfide mine proposal before an administrative law judge. You may not know much about this process, what will happen, and what the results will mean for Lake Superior and the people who depend on clean water downstream of the PolyMet proposal. This FAQ document is designed to get you the answers you need.
What is a contested case hearing and how does it differ from other appeals of the PolyMet permits?
A contested case hearing is an administrative trial, run by an administrative law judge. The judge hears evidence, summarizes the facts, and makes a recommendation to the agency (in this case, the Minnesota Department of Natural Resources (DNR). This is a very different kind of proceeding than our appeals of PolyMet’s permits. Most fundamentally, this is mainly about establishing the facts by calling expert witnesses to testify. It includes the opportunity to cross-examine PolyMet’s and DNR’s witnesses as well. This will occur in front of a neutral judge who will weigh the evidence. Our other cases are all appeals rather than trials and are based on the facts as DNR presented them to the appellate courts.
What is this contested case hearing about?
This hearing is an important moment in the legal saga involving this permit application. On November 1, 2018, the DNR issued PolyMet a Permit to Mine, but in an April 2021 decision the Minnesota Supreme Court reversed the permit and told DNR it needed to examine evidence submitted by MCEA and its allies, particularly in relation to its pollution containment proposal.
During this contested case hearing, MCEA, WaterLegacy, and the Fond du Lac Band will present expert evidence illustrating the shortcomings and dangers of this proposal. This means that, for the first time, MCEA and our partners will be able to cross-examine PolyMet and DNR’s witnesses under oath about the facts underlying this permit. This is truly worth underscoring - after 17 years of environmental review and permitting, Minnesotans will finally be able to see claims on the PolyMet proposal subjected to cross examination in front of a neutral decision maker.
How did this contested case hearing get ordered?
This hearing is required because the Minnesota Supreme Court found that there was no evidence showing that PolyMet’s proposal to use bentonite clay to cover PolyMet’s reactive tailings would actually work to prevent pollution and meet the requirements of Minnesota laws. Two quotes from the Minnesota Supreme Court’s decision are helpful for understanding this. “MCEA ... contend[s] that there is no evidence in the record that the bentonite amendment proposed by PolyMet has been tested nor is there any evidence that the methods for applying bentonite will be effective at reducing oxygen and water infiltration into the stored tailings. We agree.” (p. 35) This is important since “[t]he effectiveness of the bentonite amendment is critical in preventing oxygen and water from reaching the stored tailings and ensuring the NorthMet project’s compliance with the DNR’s reactive waste rule.” (p. 36)
What is bentonite, and why is it important to the PolyMet permit to mine?
Bentonite is a form of clay that is used to block water and oxygen. The original DNR 2018 permit to mine - now suspended - would have permitted PolyMet to leave tailings behind a dam in perpetuity after closure, using a “wet closure” technique, and bentonite plays a particularly important role in that scheme. After closure, PolyMet’s plan is to spread a bentonite mixture on the pond bottom on top of the tailings basin, which is supposed to prevent water from moving through the tailings and preserve a “water cover” on top of the basin. If the bentonite fails, more water will move through the tailings, creating more pollution. In addition, the more saturated the tailings are with water, the more unstable they become, increasing the risk of the dam’s collapse.
In order to satisfy Minnesota rules and protect our waters, PolyMet needs to prevent air and water from creating a reaction with the tailings left behind after operations end - forever. There is no proof in the record that the use of bentonite to this effect will work.
Who is involved in this hearing?
Petitioners are the “Conservation Organizations” (Minnesota Center for Environmental Advocacy, Friends of the Boundary Waters Wilderness, Duluth for Clean Water, Center for Biological Diversity, Friends of the Cloquet Valley State Forest, Save Lake Superior Association, and Save Our Sky Blue Waters) represented by Minnesota Center for Environmental Advocacy, WaterLegacy represented by Paula Maccabee of Just Change Law Offices, and the Fond du Lac Band of Lake Superior Chippewa represented by Sonosky, Chambers, Sachse, Mielke & Brownell, LLP. Other parties in the hearing are PolyMet Mining and the Minnesota Department of Natural Resources. The hearing is in front of Administrative Law Judge James E. LaFave.
I thought that the Court of Appeals ordered a broader contested case hearing on a wide array of issues with the PolyMet permit to mine - why is it only on bentonite?
The bentonite issue is important and central to PolyMet’s pollution management scheme and this hearing will confirm, we believe, that PolyMet’s permit is inadequate. It’s important to note that the hearing will focus on this one component of PolyMet’s reclamation plan and that this hearing will not examine other connected issues, including dam safety, financial assurance, whether Glencore should be listed on the permit, and whether the plan for “wet closure” meets Minnesota laws.
The Minnesota Court of Appeals, in their decision reversing the permit to mine in January 2020, ordered a broad contested case hearing on all of these issues. The Minnesota Supreme Court reviewed this decision, and in April 2021 found that a contested case hearing was required on the bentonite issue. The Minnesota Supreme Court confirmed, however, that DNR has the ongoing authority to include any or all of these issues in a contested case hearing.
If the DNR continues to decline this opportunity, as it has since 2016, it will mean the first sulfide-mine proposal in Minnesota could advance without the DNR hearing from all sides on these major ongoing issues. DNR can, and should, address this error.
When is the hearing being held?
The hearing will begin at 9:45am on Monday, March 27th. It will likely last through the week, ending sometime Friday afternoon. After Monday, the hearing will begin daily at 9:00am and end at 4pm. On Monday and Tuesday, the hearing will focus on petitioners’ cross-examination of witnesses for PolyMet and the DNR. On Wednesday and Thursday, PolyMet and DNR will cross-examine witnesses for opponents of the proposal, including Dr. Craig Benson, the leading global expert on bentonite.
Can I attend the hearing or watch online?
To watch the hearing, you must attend in person; there are no remote viewing options available at this time. The hearing will be in the Skjegstad Room #2000 on the 2nd floor of the Stassen Office Building (600 N. Robert St., St. Paul, MN). Any photography or video must be approved by Administrative Law Judge James E. LaFave in advance of the hearing.
What will happen during the hearing?
The majority of the hearing will be devoted to cross-examination of witnesses. Petitioners, the Minnesota DNR, and PolyMet have each brought forward witnesses who have filed written testimony in advance of the hearing. We expect that Monday and Tuesday of the hearing will be devoted to MCEA and other petitioners cross-examining DNR and PolyMet witnesses. Wednesday, Thursday and Friday will focus on DNR and PolyMet cross-examining witnesses from MCEA, WaterLegacy, and Fond du Lac.
What happens after the hearing is over? Will this hearing result in the PolyMet permit to mine being struck down for good?
The result of this hearing will be a decision from ALJ James LaFave, making recommendations to the DNR about bentonite in the Permit to Mine. The DNR can accept these recommendations or choose not to. In addition to the bentonite issue in the hearing, there are two other issues related to the Permit to Mine that the DNR has said they will address separately after the contested case hearing - the lack of a term limit in the permit and the company name(s) on the permit. The latter issue has become even more salient recently, since PolyMet and Teck have created a new joint venture called NewRange Copper-Nickel LLC.
In short, this hearing is an important moment along the path to determine whether the permit to mine issued to PolyMet satisfies the laws of the State of Minnesota. The bentonite issue is central to PolyMet’s pollution management scheme and this hearing will confirm, we believe, that PolyMet’s proposal fails.
Ultimately, the DNR will make a decision on whether to reissue the Permit to Mine, whether changes are needed, and whether the public will have the ability to have input into these decisions. Once DNR makes these final decisions, they can be challenged in the Court of Appeals, just as this version of the permit was appealed.
Since Minnesota’s Courts will also be addressing arguments about the legal sufficiency of the permit. DNR’s decisions about the permit to mine would be best informed by a complete fact record that includes hearings on all the related fact issues, including especially the dam design.
What is the status of other permits that PolyMet would need to construct and operate their proposed sulfide mine?
Major permits needed by PolyMet to begin construction or operation remain reversed or stayed. Specifically, the water pollution (NPDES) permit was reversed by the Court of Appeals and also awaits a ruling from the Minnesota Supreme Court. The wetlands destruction (Section 404) permit is stayed by the Army Corps of Engineers and is awaiting a determination on whether it violates the Fond du Lac Band of Lake Superior Chippewa’s water quality standards. The appeal of the air pollution permit is awaiting a decision by the Minnesota Supreme Court about a technical matter. And the Permit to Mine will remain reversed unless reissued by the DNR after the contested case hearing and other matters are addressed.