PolyMet Permit to Mine & Dam Safety Permits: Appeals

What is the PolyMet permit to mine and dam safety permit appeals?

The Minnesota Department of Natural Resources (DNR) approved the Permit to Mine and Dam Safety Permits for tailings waste and hydrometallurgical waste for the PolyMet sulfide mine project on November 1, 2018. At the same time, the DNR denied petitions by WaterLegacy and our allies for a contested case hearing before an impartial administrative law judge.

On December 3, 2019, WaterLegacy and our allies appealed both the PolyMet Permit to Mine and the PolyMet Dam Safety Permits. WaterLegacy’s claims on appeal included the following:
  • DNR’s denial of a contested case hearing violated state law and was arbitrary, capricious and not supported by the evidence.
  • The Permit to Mine is vague, unenforceable and lacks definite conditions required by law.
  • PolyMet’s tailings dam location, foundation, design, and permanent wet closure are unsafe and should not have been approved.
  • Permanent seepage through reactive mine wastes will contaminate surrounding waters and should not have been approved.
  • Location of toxic hydrometallurgical wastes on an unstable foundation risks liner rupture spilling sulfate, mercury, and other toxic metals, and should not have been approved.
  • Financial assurance approved by the DNR before issuance of the Permit to Mine is legally deficient.

What’s the current status of the appeal?

WaterLegacy, our environmental allies, and the Fond du Lac Band achieved a stunning victory on January 13, 2020, when the Minnesota Court of Appeals reversed both the PolyMet Permit to Mine and Dam Safety Permits and ordered DNR to conduct a contested case hearing on whether the permits should be issued to PolyMet.

Since then, PolyMet and the DNR petitioned for review by the Minnesota Supreme Court, and the cases are now under Supreme Court review. Because the PolyMet Permit to Mine and Dam Safety Permits were stayed by the Court in October 2019 and then reversed, PolyMet cannot begin construction of its sulfide mine project while court review continues.

Minnesota Supreme Court Chamber

Video: PolyMet Permit to Mine Struck Down

Listen to WaterLegacy Advocacy Director Paula Maccabee give a breakdown of the Court of Appeals decision victory and get some tips on what you can do next to help protect Minnesota waters from toxic mining pollution.

The Court of Appeals’ January 13, 2020 ruling reversed DNR’s decisions approving the PolyMet Permit to Mine and Dam Safety Permit and denying a contested case. The Court held:

[W]e conclude that the DNR erred in interpreting Minn. Stat. § 93.483 (2018) and that the requirements for holding a contested-case hearing under that statute are met. We also conclude that the DNR erred by issuing a permit to mine without a definite term. Accordingly, we reverse the DNR’s decisions to issue the permit to mine and dam-safety permits and remand for the DNR to hold a contested-case hearing.

WL [WaterLegacy] has provided substantial evidence—in the form of an inundation study conducted by PolyMet—that its members’ properties will be affected by the risk of dam failure.

DNR erred by failing to recognize its obligation to independently evaluate whether the statutory criteria for a contested-case hearing were met.

[T] the statutory criteria for holding a contested-case hearing are met when there is probative, competent, and conflicting evidence on a material fact issue . . . Nothing in the statutory language grants the DNR the unfettered discretion it seeks to employ.

The Court of Appeals identified specific issues that must be included in a contested case hearing including: tailings dam upstream construction, seepage capture and use of bentonite to control pollution, alternatives to wet closure of the tailings basin, financial assurance, and the need to put PolyMet’s majority owner Glencore on the Permit to Mine.