PolyMet Sulfide Mine Minnesota State Permits

Current Situation – WaterLegacy has Appealed the PolyMet Permit to Mine and Dam Permits to the Minnesota Court of Appeals

December 3, 2018: WaterLegacy, other environmental groups and the Fond du Lac Band of Lake Superior Chippewa filed appeals of the Permit to Mine and Dam Safety Permits for the PolyMet NorthMet sulfide mine project.

The Minnesota Department of Natural Resources (“DNR”) had granted the Permit to Mine and Dam Safety Permits for tailings waste and hydrometallurgical waste on November 1, 2018, simultaneously denying WaterLegacy’s petition for a Contested Case Hearing before an impartial administrative law judge.

WaterLegacy’s appeal challenges the PolyMet Permit to Mine:

  • The  DNR’s denial of a contested case hearing violated state law and deprived affected citizens of due process.
  • The Permit to Mine is vague, unenforceable and lacks definite conditions to protect water quality.
  • Wet slurry tailings storage and permanent water running through reactive wastes fails to use available technology to protect water quality as the law requires.
  • Location of the Project’s hydrometallurgical waste disposal facility on an unstable foundation fails to comply with law.
  • Approval of conceptual and unproven designs to collect wastewater moving through reactive wastes at the tailings waste facility and permanent waste rock stockpile fails to comply with law.
  • Financial assurance approved by the DNR before issuance of the Permit to Mine is legally deficient.

READ the Statement of the Case (Court of Appeals Case No. A18-1952) that summarizes WaterLegacy’s claims. 

Mount Polley tailings dam catastrophe (2014)

WaterLegacy’s appeal challenges the PolyMet Dam Safety Permits:

  • The tailings dam’s permanent wet impoundment on an unstable foundation doesn’t protect public safety and welfare.
  • Constructing the hydrometallurgical waste facility on an unstable foundation on top of peat and slimes creates a totally avoidable risk of liner deformation and failure releasing highly toxic wastes and mercury.
  • Dam Permits granted by the DNR for both the tailings and hydrometallurgical waste dam lack the final designs, geotechnical data, and operations plans required by law.
  • PolyMet should have been required to get a public waters work permit for the tailings dam, and dam permits must include both PolyMet companies jointly funding and operating the sulfide mine.

READ the Statement of the Case (Court of Appeals Case No. A18-1953) that summarizes WaterLegacy’s claims. 

READ news coverage of the Appeals Court challenges to PolyMet Permits in the Tower Timberjay:

There is a myth in Minnesota that we have tough regulators. Just the opposite,” said Paula Maccabee, advocacy director and legal counsel for Water Legacy. “The DNR has granted PolyMet a permit to mine admitting that its design and operational details are not ‘firmly in place.’ At the very least, with Minnesota’s first proposed sulfide mine, we should demand that no permits be issued unless and until PolyMet shows us, and an unbiased administrative judge, that they know what they’re doing.

On November 1, 2018, the DNR also granted permits for water appropriations, taking of endangered species and replacement of wetlands that would be destroyed by the PolyMet sulfide mine project on November 1, 2018. Harm to wetlands, streams and endangered species is governed by federal statutes, regulations and permitting as well as under state permit law.

We are expecting that the Minnesota Pollution Control Agency (MPCA) will issue a final Wastewater Discharge (NPDES/SDS) Permit and Clean Water Act Section 401 Certification in the next couple of weeks. These permits both pertain to water pollution and mercury contamination of fish.

WaterLegacy has previously opposed the draft Wastewater Discharge (NPDES/SDS) Permit and the draft Clean Water Act Section 401 Certification.

Upcoming Action – Stay Tuned

We are expecting that the Minnesota Pollution Control Agency (MPCA)will issue a final Wastewater Discharge (NPDES/SDS) Permit and Clean Water Act Section 401 Certification in the next couple of weeks. These permits both pertain to water pollution and mercury contamination of fish.

WaterLegacy has previously opposed the draft Wastewater Discharge (NPDES/SDS) Permit and the draft Clean Water Act Section 401 Certification.

WaterLegacy has Opposed PolyMet Draft Wastewater Discharge Permit & Draft Clean Water Act Section 401 Certification

WaterLegacy opposed the MPCA draft PolyMet Wastewater Permit & draft Clean Water Act Certification and Petitioned for a Contested Case Hearing
(March 16, 2018)

The PolyMet draft Wastewater Discharge (NPDES/SDS) Permit proposed by the Minnesota Pollution Control Agency (MPCA) would allow the PolyMet mine, processing, tailings, and hydrometallurgical waste disposal facilities to pollute groundwater and surface waters in the Lake Superior Basin and increase mercury contamination of fish.

The PolyMet draft Clean Water Act Section 401 Certification proposed by the MPCA would give the U.S. Army Corps a green light to permit PolyMet water pollution and massive destruction of wetlands.

WaterLegacy opposed both the MPCA draft NPDES/SDS water pollution permit and the MPCA draft Section 401 Certification for the PolyMet sulfide mine project and requested a contested case hearing on both issues.

WaterLegacy concluded that the MPCA draft water pollution permit and draft Section 401 Certification would violate the Clean Water Act and state pollution control laws. Here are a few of the main points:

  • The draft PolyMet water pollution permit would allow polluted seepage from mine pits, tailings and waste rock piles to cause or contribute to violation of Minnesota state water pollution standards.
  • The draft PolyMet permit avoids monitoring near the source of pollution, so water pollution could go undetected for decades, if not forever.
  • The draft PolyMet permit does not set limits on direct discharge of pollutants to streams and wetlands to comply with Minnesota standards for mercury, other toxic metals, sulfate or other pollutants.
  • The PolyMet sulfide mine project violates laws for both NPDES water pollution permits and Section 401 Certification since it would increase mercury concentrations in water and in fish, degrade water quality, and increase mercury impairments of water quality.

READ WaterLegacy’s March 16, 2018 Comments Opposing the MPCA’s Draft Water Pollution (NPDES/SDS) Permit and Draft Section 401 Certification for the PolyMet Project and Petition for Contested Case Hearing.

Exhibits to WaterLegacy’s Comments and Objections to the PolyMet draft permits and draft Section 401 Certification can be obtained on request from Paula Maccabee, WaterLegacy Advocacy Director and Legal Counsel, paula@waterlegacy.org.

Additional Background

PolyMet Draft Permit to Mine

WaterLegacy filed Objections to the PolyMet draft Permit to Mine and a Petition for Contested Case Hearing (February 27, 2018) and additional Comments (April 5, 2018)

WaterLegacy summarized our Objections to the draft Permit to Mine as follows:

WaterLegacy believes the DNR draft Conditions are vague, unenforceable, and further serve to insulate PolyMet from demonstrating that its proposed mine project will use modern technologies and methods and meet legal requirements.

Fundamentally, the draft Permit to Mine for the PolyMet NorthMet copper-nickel mine fails to protect natural resources, particularly groundwater and surface water, and the communities – including aquatic life, wildlife and human beings – who rely upon these freshwater resources. Approval of this draft permit would pose a huge risk of creating a Superfund legacy of destruction and contamination in the headwaters of the St. Louis River, the largest United States tributary to Lake Superior.

Overall, PolyMet has proposed a project with marginal economics that uses outmoded waste storage technology and makes unsupported claims that the cheapest waste containment and treatment methods will produce unheard of and extraordinary results.

READ WaterLegacy’s Comments on PolyMet Financial Feasibility and Dependence on Glencore.

READ WaterLegacy’s updated Fact Sheet: Glencore and PolyMet – Bad Deal for Minnesota.

PolyMet Draft “Dam Safety” Permits

WaterLegacy opposed the draft PolyMet “Dam Safety” Permits for Tailings and Hydrometallurgical Waste. (October 16, 2017)

WaterLegacy’s Comments emphasized deficiencies in the draft PolyMet dam permits:

“PolyMet has not performed studies of the potential hazards that would result from dam failure at its proposed Flotation Tailings Basin (FTB) or Hydrometallurgical Residue Facility (HRF) dams. 

Draft PolyMet Dam Safety permits defer regulatory decisions that should be contained in permits and fail to provide conditions, final design requirements or specific contingencies needed to regulate construction, maintenance, operation and abandonment of the FTB and HRF dams to protect public health, safety, welfare and the environment.

Draft FTB and HRF Dam Safety permits, along with the PolyMet documents incorporated by reference in the draft permits fail to provide adequate factors of safety, to comply with Minnesota rules or to address well-founded concerns, including those of DNR’s consultants, regarding fundamental design of PolyMet waste facilities.”

READ WaterLegacy’s October 16, 2017 Comments Opposing PolyMet Draft Dam Safety Permits.

“Paula Maccabee, an attorney for WaterLegacy, said her preliminary review of the permit documents indicates neither the DNR nor PolyMet have adequately assessed the risks to people or water quality from a catastrophic dam failure and release of toxic wastes. . .

PolyMet Draft Water Appropriation Permits

WaterLegacy Opposed PolyMet Draft Water Appropriation Permits (August 31, 2017)

  • The DNR draft PolyMet water appropriation permits would allow PolyMet to appropriate 6.175 billion gallons of water per year.
  • PolyMet would take 10 times as much water from Partridge River Headwaters as proposed in the PolyMet Final EIS. (More water than watershed contains.)
  • PolyMet would pay only $8 per million gallons appropriated.

WaterLegacy’s comments concluded:

“The DNR must also set conditions to protect upper Partridge River elevation, average and low flows. Then the DNR must require PolyMet to demonstrate that it can and will comply with conditions to protect the Partridge River Headwaters, the streamflow conditions proposed to maintain Embarrass River creeks and Second Creek within ±20% of existing flows, and with PolyMet’s promised 90% rate of contaminated groundwater seepage collection at the NorthMet tailings basin and Category 1 waste rock stockpile.

READ WaterLegacy’s August 31, 2017 Comments Opposing PolyMet Draft Water Appropriation Permits.