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Lawsuits, contested case hearings could decide final outcome for Polymet permit

DULUTH—After 13 years, millions of dollars and a winding path through regulatory scrutiny, Minnesota's first-ever copper mine might be on the verge of its last-ever public hearings.

The Minnesota Department of Natural Resources and Pollution Control Agency will hold open-house and public input sessions Wednesday, Feb. 7, in Aurora and Thursday in Duluth on draft permits they have released for PolyMet Mining Corp.

The primary DNR permit would govern PolyMet's plan to mine the land, process the ore and ultimately reclaim the site. The PCA permits dictate how the company will control air and water pollution at the proposed open-pit mine near Babbitt and processing plant near Hoyt Lakes.

The agencies released the draft permits last month, signaling the company's plans appeared to comply with state and federal regulations.

Hundreds of people are expected to attend both events this week, wearing buttons and hats with slogans for and against copper mining. The verbal and written comments will be recorded, and are supposed to be carefully weighed by regulators to see if they raise any new issues that may have been missed in the decade-long effort.

"It's not just the number of comments we'll get, but also the scope and the content. We have no idea how long this is going to take," said Barb Naramore, DNR assistant commissioner.

After the agencies review public comments this spring, final permits for the projected $650 million project could be issued later this year, with construction set to follow. The company hopes to mine and process valuable metals by 2020.

"It's moving toward the home stretch. ... It's the next important step of the process. A damned long and comprehensive process," said Frank Ongaro, executive director of Mining Minnesota, the copper-mining trade group. "Until now, it's been about possible environmental impacts. Now, it's about how a company is going to build and operate a mine and meet all of the air and water quality standards while doing so."

Ongaro sees little chance of a dealbreaker at this point.

"I'm confident the agencies will go through the public comments and, when they're done, find there are no surprises out there" and issue the permit, he said.

Agency officials say they still have more work to do, and that it's possible new issues and new details could be unveiled that cause delays or changes in the final permit versions.

Critics predict the permits will end up in a lawsuit, a contested case hearing or both. A contested case hearing — with public input and open hearings overseen by an administrative law judge — can be called for by the agency commissioner or triggered by downstream property owners or by groups that claim disputed facts remain unresolved. If the agency commissioners don't agree that there are disputed material facts, opponents can ask the Minnesota Court of Appeals to intervene.

"When this ends up in front of a neutral third party, whether it's in court or an administrative law judge, they will not let happen to Minnesota what's happened in every other state where sulfide mining has been permitted," said Paula Maccabee, attorney for the group WaterLegacy. "PolyMet's draft permits are full of vague, unenforceable statements and weak conditions written by agencies that have bent over backwards to help this project advance. They aren't going to hold up to impartial scrutiny."

Aaron Klemz, spokesman for the Minnesota Center for Environmental Advocacy, said the mining permit in particular leaves too many issues unresolved with decisions to be made later as mining begins.

"The permits are where the decisions are supposed to be made under public scrutiny. But the DNR is simply kicking the can down the road so it can make the decisions alone with the company during the annual mining reviews where there's no public input," Klemz said.

For supporters, the draft permits signal light at the end of the tunnel. The first public meeting on the company's mining plan was held in June 2005. Since then the company's environmental impact statement has been approved (after a two-year do-over) and the company has applied for the 21 state and federal permits required to start mining.

After 13 years, state and federal agencies appear poised to issue those permits.

The PCA "has determined there is reasonable assurance that the proposed activities will be conducted in a manner that will not violate applicable water standards," PCA Commissioner John Linc Stine noted in a letter to the company releasing the draft permits.

DNR Commissioner Tom Landwehr, in releasing the draft permit-to-mine last month, said regulators and the company have followed previously untested state laws governing copper mining to the letter.

Despite misperceptions that the agency or governor might nix the project simply due to personal or political opposition, Landwehr noted that the issue isn't discretionary: If PolyMet meets the requirements set in state statutes, the DNR must grant the permits.

"At this point ... all the requirements have been met," Landwehr said in January.

Supporters say the PolyMet project, which will mine 32,000 tons of rock daily and employ about 300 people, will help diversify a regional economy that has been tied the cyclical iron mining industry for a century.

Critics say that, unlike in iron ore mining, the higher-sulfur rock that holds the copper — when exposed to air and water — poses too high a risk of acidic runoff that could spur heavy-metal pollution and other problems in downstream waterways, including the St. Louis River and Lake Superior.

Another issue is a federal lawsuit, filed by environmental groups, challenging a land swap between PolyMet and the U.S. Forest Service that gives PolyMet ownership of 6,500 acres at the proposed mine site and giving the Superior National Forest an equal value of previously privately owned forest to add for public use.

That lawsuit is pending. But legislation has passed the U.S. House that would force the Forest Service to move ahead with the land swap, in essence nullifying the suit. The bill has not yet passed the Senate. PolyMet already has acquired mineral rights.

If you go

PolyMet public meetings

Wednesday: Mesabi East High School, 601 N. First St. W. in Aurora; open house from 4-9 p.m. with public comments accepted from 6-9 p.m.

Thursday: Duluth Entertainment Convention Center, 350 Harbor Drive; open house from 1-9 p.m. with public comments accepted from 6-9 p.m.

For more information, to see the draft permits and for links on how to comment, go to polymet.mn.gov.

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