Judge says DNR shouldn’t reissue key permit for northern Minnesota copper-nickel mine

An administrative law judge has recommended that state environmental officials don’t reissue a key permit for a proposed northern Minnesota copper-nickel mine, the latest setback for the mining company formally known as PolyMet.

PolyMet, a subsidiary of Glencore, is now known as NewRange Copper Nickel LLC, a joint venture between PolyMet and Teck Resources, according to court records.

On Tuesday, Administrative Law Judge James E. LaFave issued a 40-page ruling recommending the Minnesota Department of Natural Resources (DNR) deny a permit for the NorthMet Project because the company cannot effectively contain pollution from mining waste.

The contested case hearing that the judge ruled on was to determine if NewRange’s plan to use bentonite to prevent pollution complies with Minnesota regulations. The DNR’s commissioner can now take or leave LaFave’s recommendation and choose to grant or deny the application, with or without modifications.

Mine permits are required in part to limit the movement of water over and through mine waste. The NorthMet Project would be Minnesota’s first-ever copper-nickel-platinum group elements mine.

The project would entail 18 to 24 months of construction, followed by 20 years of mining. In an effort to satisfy Minnesota’s Reactive Waste Rule, NewRange submitted the bentonite amendment.

The Reactive Waste Rule requires companies to store mining waste in a way so that it is no longer “reactive” or guarantee that water won’t be able to flow over or through the waste.

NewRange’s solution to satisfy the Reactive Waste Rule consists of using bentonite — a clay that expands when it comes into contact with water or moisture, therefore limiting the amount of water and air that can pass through. The company’s plan involved storing the mining waste in a lake that has soil mixed with bentonite along the side slope, beaches, top and bottom of the lake.

The NorthMet Project would produce around 32,000 tons of ore and 42,000 tons of waste per day, on average. That equates to more than 225 million tons of mining waste over the 20-year life of the mine, court documents note.

According to NewRange’s plan, all waste rock would be ground into sand and turned into a slurry that would be stored in the waste lake.

In his ruling, LaFave wrote that NewRange’s mining waste would still be reactive, so the company would have to keep water out of the waste. However, he determined the company’s plan “would not help ensure that the NorthMet Project will permanently prevent all the water from moving through or over the mine waste.”

NewRange estimates that, by design, around 298 million gallons of water will move over or through the mining waste every year. Of that, around 160 million gallons of water will seep from the pond, 73 million gallons of water will seep through the beaches, and 65 million gallons of water will seep from the dams, according to documents for the contested case hearing.

In the court documents, NewRange argues that 298 gallons is a small portion relative to the over 32 billion gallons of water in the lake, as that spillage accounts for just 0.044% of the total water.

However, several conservation organizations disagree on that point.

The organizations argued in the contested case hearing that the issue is the amount of water going over or through the mining waste — and not the percentage of the total stored water that will seep from the lake. They added that whatever the law considers “substantially all” to mean, 298 million gallons per year isn’t it.

“For example, if 298 million gallons were measured in Olympic-sized swimming pools, the water would fill 451 pools. Lined up end-to-end, the pools would stretch for a distance of nearly 14 miles,” a spokesperson for the conservative organizations said in the ruling.

LaFave agreed, writing that the law requires NewRange to prevent water from moving over and through mining waste and, by the company’s own admission, that won’t happen under the current plan.

A statement from the MCEA and Friends of the Boundary Waters can be found HERE.

5 EYEWITNESS NEWS has reached out to NewRange for a comment and will update accordingly.

RELATED: Minnesota Supreme Court deals another blow to proposed PolyMet mine, criticizes MPCA actions