C.O. Objection Letter To PolyMet Land Exchange

Conservation Organizations
Objection to the NorthMet Land Exchange and

Final Environmental Impact Statement
Submitted to the United States Forest Service
January 4, 2016
Kathleen Atkinson, Reviewing Officer

Attn: Objections & Litigation
USDA Forest Service, Eastern Region
626 E. Wisconsin Avenue
Milwaukee, WI 53202
Dear Ms. Atkinson,
Pursuant to 36 C.F.R. Part 218, the Center for Biological Diversity, Minnesota Center for
Environmental Advocacy, Friends of the Boundary Waters Wilderness, Sierra Club North Star
Chapter, Save Our Sky Blue Waters, Northeastern Minnesotans for Wilderness, Friends of the
Cloquet Valley State Forest, Save Lake Superior Association, Voyageurs National Park Association,
National Parks Conservation Association, and Western Lands Project (collectively, conservation
organizations) object to the NorthMet Land Exchange on the Superior National Forest, as set forth
in the Draft Record of Decision (DROD) published on November 17, 2015 and the NorthMet
Mining Project and Land Exchange Final Environmental Impact Statement (FEIS). The responsible
official is Brenda Halter, Superior National Forest Supervisor.
Our designated lead objector is Marc Fink of the Center for Biological Diversity. His contact
information is:
Marc Fink
Center for Biological Diversity
209 E. Seventh St.
Duluth, MN 55805
mfink@biologicaldiversity.org
218/464-0539
We understand that for the purpose of this objection process, you will communicate only with Mr.
Fink. However, all of the Conservation Organizations would like to be included on any contact lists
you keep regarding the NorthMet Project and Land Exchange, and regarding mineral exploration
and development on the Superior National Forest more generally. Contact names and addresses for
each organization are found at the close of this letter.
Pursuant to 36 C.F.R. 218.11(a), we request a meeting to discuss the issues raised in this objection
and potential resolution. Our first preference is an in-person meeting at the Forest Supervisors
office in Duluth, Minnesota. Our second preference is a telephone conference. Our schedule is
flexible, except that we are unavailable the week of February 15.
1.0
Table of Contents
Introduction .......................................................................................................................................... 1
1.1
Objectors ................................................................................................................................. 1
1.2
Previous comments and other materials ............................................................................. 3
1.3
Exhibits and reports ............................................................................................................... 5
A.
National Environmental Policy Act .................................................................................................. 6
2.0
Details of Financial Assurance Must Be Disclosed to Effectively Assess Mitigation Measures

and Socioeconomic Impacts. .............................................................................................................. 6
3.0
The Final EIS Must Assess the Underground Mine Alternative as a Feasible and Prudent
Alternative. ............................................................................................................................................ 8
4.0
3.1
The determination that underground mining would not be economically viable rests
on errors and discrepancies in estimating costs of mining. .............................................. 9
3.2
Mineralization outside the pit envelope ............................................................................13
The Co-Lead agencies erroneously rejected the backfilling of the West Pit. ............................18
4.1
5.0
Alternatives to West Pit Filling. ..........................................................................................20
The EIS must include the alternative of dry stacking the tailings. ..............................................20
5.1
Alternative Methods of Dam Construction ......................................................................24
6.0
The EIS must provide information on what can be expected under the no action
alternative in such a way that it can be compared to the impacts of the proposed mine. .......24
7.0
The FEIS fails to provide adequate analysis of the effectiveness of mitigation measures, and
the impacts of reasonably foreseeable accidents and failures. .....................................................26
7.1
Tailings Basin and Dam .......................................................................................................39
7.2
Pipelines .................................................................................................................................40
7.3
Transportation.......................................................................................................................42
7.4
Liners and covers ..................................................................................................................43
7.5
Leachate barrier and collection systems ............................................................................47
7.6
Hydrometallurgical Residue Facility...................................................................................50
7.7
Waste Water Treatment .......................................................................................................50
7.8
East Pit Water Pumping, Treatment and Return .............................................................52
7.9
Categorization of waste rock ..............................................................................................54
7.10
Water quality information ...................................................................................................54
7.11
Emergency Response Plans ................................................................................................54
7.12
Reclamation Plan ..................................................................................................................54
8.0
The EIS is based on a flawed water model that does not consider all potential impacts of the
project. .................................................................................................................................................55
9.0
Modeling must be re-done to reflect the actual hydrology of the mine site to provide an
accurate assessment of impacts. .......................................................................................................58
10.0
The geochemistry work relied upon by the FEIS uses unsupportable assumptions and
inadequate data. ..................................................................................................................................61
11.0
The EIS must assess water quality impacts in the Partridge River at the closest point between
the river and mine features. ..............................................................................................................62
12.0
The EIS must disclose the predicted quality of publicly-owned water within the property
boundary, including groundwater. ...................................................................................................64
13.0
The FEIS must disclose the uncertainties that make many of the predictions regarding water
quality and quantity suspect. .............................................................................................................65
13.1
The volume of water from mine dewatering is uncertain...............................................65
13.2
The extent of bedrock fractures is uncertain ....................................................................65
13.3
The range of concentrations of constituents in leachate is uncertain ...........................65
14.0
The discussion of passive treatment in the FEIS is misleading and should be removed. ...66
15.0
The FEIS does not address pumping water from areas around the pits during mining, or the
potential for elevated concentrations of nitrate and ammonia ....................................................70
16.0
The FEIS does not adequately address the potential impacts of mercury. ...............................71
17.0
The FEIS fails to adequately disclose, analyze or discuss the effects of the project on area
wetlands ...............................................................................................................................................76
17.1
Wetland Identification and Classification. ........................................................................77
17.2
Avoidance and Mitigation ...................................................................................................79

17.2.1 State and federal law require that effects to rare natural communities must be
avoided......................................................................................................................79
17.2.2 Indirect wetlands effects are not adequately disclosed and analyzed and are
defined too narrowly. .............................................................................................81
17.2.3 The FEIS inadequately addresses climate change implications for wetland
impact avoidance and mitigation. .........................................................................83
17.2.4 The FEIS fails to explain how the proposed mitigation complies with the
law. ............................................................................................................................85
17.3
The FEIS fails to address increased potential for mercury methylation in area
wetlands..................................................................................................................................86
17.4
The FEISs discussion of financial assurance for wetland mitigation obligations is

wholly inadequate and largely absent. ................................................................................87
17.4.1 Assurance for monitoring for indirect effects. ...................................................87
17.4.2 Assurance for mitigation. .......................................................................................88
ii
17.4.3 Financial assurance instruments............................................................................88

17.4.4 Project proponent financial status ........................................................................89
18.0
17.5
Impacts of air deposition on wetland and stream water quality ....................................89
17.6
Loss of wetland value to the federal estate .......................................................................90
The EIS must include the off-site indirect impacts of this project.........................................91
18.1
The FEIS fails to take a hard look at the impacts of generation of electricity for
this project .............................................................................................................................92
18.2
The FEIS fails to take a hard look at the transport and disposal of waste. .............93
18.3
The FEIS fails to take a hard look at the environmental effects of transporting ore
to smelters, smelting or further processing of the copper ore .......................................93
19.0
The EIS fails to adequately assess impacts to federally listed species, and fails to demonstrate
compliance with the Endangered Species Act ...............................................................................96
20.0
The EIS must disclose the impacts of the proposed action on moose ................................... 101
21.0
The cumulative effects analysis in the FEIS is inadequate ........................................................ 104
22.0
The FEIS does not assess cumulative impacts on wildlife........................................................ 112

22.1
23.0
Cumulative impacts on rare plants .................................................................................. 120
The FEIS uses information provided by PolyMet that has not been independently verified
by the agencies. ................................................................................................................................ 123
23.1
The Biological Evaluation was prepared by a contractor with a conflict of interest,

and was not independently verified by the Forest Service .......................................... 124
24.0
The FEIS fails to assess the potential impacts of mineral fibers on public health ................ 125
25.0
Assumptions regarding naturally occurring metals are unwarranted. ...................................... 132
26.0
The FEIS does not take a hard look at the potential for violations of the copper water
quality standard ................................................................................................................................ 132
27.0
The FEIS erroneously ignores degradation of high quality waters. ......................................... 133
28.0
The FEIS must disclose the fate of chemicals use in mining and processing. ....................... 133
29.0
The FEIS fails to consider alternative sources of electricity. .................................................... 133
30.0
The FEIS must assess alternative mitigation measures to reduce greenhouse gas emissions
............................................................................................................................................................ 133
31.0
The FEIS must include all greenhouse gas emissions that result from this project in lifetime
totals. ................................................................................................................................................. 134
32.0
Impacts to wild rice should be assessed for all wild rice habitat. ............................................. 134
33.0
The FEIS must disclose the potential impacts on wildlife from the West Pit water. ........... 134
34.0
The FEIS does not adequately assess the impacts on wildlife from noise and human activity.
............................................................................................................................................................ 134
iii
35.0
The FEIS erroneously dismisses the cumulative impact on visibility in the BWCAW. ....... 135
36.0
The assessment of socioeconomic benefits fails to recognize several important factors. .... 135
37.0
The Forest Service failed to consider reasonable alternatives to the proposed Land
Exchange. ......................................................................................................................................... 135
37.1
The Forest Service failed to assess a full exchange with restrictions alternative ...... 135
37.2
The Forest Service failed to assess an alternative that does not sacrifice important
public resources, including the Partridge River ............................................................. 136
37.3
The Forest Service Failed to Consider an Alternative in which the Agency Acquires
the Mineral Rights for the Federal Land ........................................................................ 137
37.4
The FEIS Adopts An Overly-Narrow Purpose and Need Statement for the Co-Lead
Agencies That Improperly Eliminates Reasonable Alternatives................................. 138
B.
Federal Land Policy and Management Act .................................................................................. 140
38.0
The Forest Service Failed to Consider Relevant Factors Prior to Making Its Public Interest
Determination. ................................................................................................................................. 140
39.0
The Land Exchange would significantly degrade fish and wildlife habitat, cultural resources,
and watersheds by facilitating and allowing the NorthMet Project. ........................................ 142
40.0
The Resource Values of the Non-Federal Lands Do Not Equal or Exceed the Resource
Values of the Federal Lands to be Conveyed. ............................................................................ 144
41.0
The intended use of the conveyed federal lands would substantially conflict with
management objectives on adjacent federal lands. ..................................................................... 147
42.0
The Forest Service has failed to demonstrate equal value. ....................................................... 149
C.
National Forest Management Act................................................................................................. 150
43.0
The Forest Service must consider the impacts of the proposed mine when considering
consistency with the Forest Plan................................................................................................... 150
44.0
The Land Exchange is inconsistent with Air Quality provisions. ............................................ 152
45.0
The Land Exchange is inconsistent with Watershed provisions. ............................................. 154
46.0
The Land Exchange is inconsistent with Vegetation provisions. ............................................ 157
47.0
The Land Exchange is inconsistent with provisions to protect federally listed species. ...... 158
48.0
47.1
Canada Lynx ....................................................................................................................... 158
47.2
Gray Wolf ........................................................................................................................... 160
47.3
Northern Long-Eared Bat ................................................................................................ 160
The Land Exchange is inconsistent with provisions to protect Regional Forester Sensitive
Species. .............................................................................................................................................. 161
48.1
Northern Goshawks and Great Gray Owls................................................................... 161
48.2
RFSS Plant and Lichen Species ....................................................................................... 164
iv
49.0
Land Adjustment and Minerals provisions do not provide for land exchanges to facilitate
mining. .............................................................................................................................................. 166
50.0
The Forest Plan must be amended before the land exchange can be considered. ................ 169
D.
The Weeks Act ................................................................................................................................ 170
51.0
The quality of title of the nonfederal properties is too poor for acquisition pursuant to the
Weeks Act......................................................................................................................................... 170
CONCLUSION ............................................................................................................................................ 172
1.0
Introduction
1.1
Objectors
The Center for Biological Diversity (CBD) is a national, nonprofit conservation organization with
more than 900,000 members and online activists dedicated to the protection of endangered species
and wild places. CBD has an office in Duluth, Minnesota, and has hundreds of members who reside
within and/or regularly use, enjoy, and recreate on public lands and waters in northeastern
Minnesota, including on the Superior National Forest. CBD, its staff, and its members and the
interests of its staff and members would be significantly harmed and injured if the proposed project
is approved and allowed to be implemented.
The Minnesota Center for Environmental Advocacy (MCEA) is a Minnesota-based non-profit
environmental organization, the legal and scientific voice protecting and preserving Minnesotas
wildlife, natural resources, and the health of its people. MCEA has members across the state of
Minnesota, some of whom live and recreate near the proposed mine. The proposed NorthMet
project has environmental implications for many of the areas of MCEAs work, including water
quality, natural resources, energy policy and public health.
The mission of the Friends of the Boundary Waters Wilderness (Friends) is to protect, preserve and
restore the wilderness character of the Boundary Waters Canoe Area Wilderness (BWCAW) and
the Quetico-Superior Ecosystem. We have nearly 3,000 members in Minnesota and across the
United States, and regularly communicate with about 27,000 supporters. Our organization values
healthy ecosystems, clean water, wilderness character, and primitive recreation. Our supporters enjoy
the Superior National Forest and the BWCAW for canoeing, camping, fishing, hunting, birdwatching, and many other reasons, as well as the regions natural, largely-undeveloped character. The
risks to many of these activities and attributes from nonferrous mining have been a significant
concern for our organization for many years.
The Friends of the Cloquet Valley State Forest is a 501(c)(3) nonprofit organization dedicated to the
protection and preservation of the natural and cultural resources of the Cloquet Valley State Forest
and promotes responsible enjoyment of this unique treasure. The Cloquet River flows through our
forest and into the St. Louis River. The people and the flora and fauna of the Cloquet River Valley
are intimately connected with the fate of our river. Our members concerns range from the health of
the people to the legacy of the land, water and ecosystem we leave to the coming generations. Many
of us make our livings by relying upon sustainable tourism, the natural world, art, and agriculture,
and anything that disrupts the ecosystem is a threat to our livelihoods and wellbeing.
Northeastern Minnesotans for Wilderness (NMW) is a nonprofit regional conservation organization
whose core mission is to advocate for the preservation and protection of public lands, designated
wilderness areas, national parks, national forests, and other wild places in the Minnesota Arrowhead
Region, especially the Boundary Waters Canoe Area Wilderness, the Superior National Forest, and
the Quetico-Superior ecosystem. Since its founding in 1996, NMW has grown to represent
over 57,515 supporters, 23,526 of whom live in Minnesota. Many of our members and supporters
1
reside year-round or seasonally in the three-county Minnesota Arrowhead Region, own property in
the three-county area, and will be directly impacted by the NorthMet Project. Our supporters also
visit and recreate throughout the three-county area.
Save Our Sky Blue Waters (SOS) is a Duluth-based grassroots non-profit organization dedicated to
protecting our regions waters, forests and wildlife. SOS formed in response to proposed coppernickel sulfide mining and exploration in Minnesota's Arrowhead region and the headwaters of Lake
Superior and throughout the Superior National Forest. The health of the St. Louis River watershed
is a key component of our mission. SOS is a non-profit public interest environmental education and
advocacy organization. The issue of potential toxic sulfide mining in northeast Minnesota may
greatly impact our organization and citizens across the region.
Save Lake Superior Association (SLSA) is headquartered in Two Harbors, MN with members
residing in the three states and one province on Lake Superior's shoreline and watershed. We have
about 300 members, many of whom fish and recreate along the North Shore of Lake Superior, in its
watershed and in the St. Louis River estuary. The mission of SLSA is to prevent further degradation
of Lake Superior and to promote its rehabilitation. We were formed in 1969 to stop the discharge of
taconite tailings into Lake Superior by Reserve Mining Company. The waste material from the
proposed NorthMet mine would contain many of the same toxins such as mercury, toxic metals and
asbestos-like fibers. As stakeholders we are concerned about the potential destruction of natural
habitat and the pollution of both air and water in Lake Superior and its watershed that would be
associated with this project and prerequisite land transfer. Lake Superiors watershed must not be
treated as a brownfield.
The Sierra Club is a national nonprofit organization of approximately 600,000 members dedicated to
exploring, enjoying, and protecting the wild places of the earth; to practicing and promoting the
responsible use of the earths ecosystems and resources; to educating and enlisting humanity to
protect and restore the quality of the natural and human environment; and to using all lawful means
to carry out these objectives. The Clubs particular interest in this case stems from the proposed
projects potential impacts on Minnesotas natural resources and public health, including: risks to
water quality, loss of wetlands, harm to wildlife, and cumulative impacts from mining. The North
Star Chapter of the Sierra Club has approximately 14,292 members in the state of Minnesota.
The mission of Voyageurs National Park Association (VNPA) is to protect and promote the natural,
recreational, and historic resources of Minnesota's Voyageurs National Park. VNPA and our
supporters across the state serve as a voice for this water-based national park and its nearly 250,000
annual visitors who enjoy kayaking, canoeing, boating, camping, and fishing there each year, and
contribute more than $16 million to the local economy. The proposed NorthMet project,
individually and cumulatively, may have dramatic environmental implications for the water quality
and health of the fish and wildlife in Voyageurs and Northern Minnesota. These implications
necessitate sound science and analysis.
Since its founding in 1919, the National Parks Conservation Association (NPCA) has been the
independent, nonpartisan voice working to strengthen and protect our nations natural, historical,
2
and cultural heritage. Together with its more than one million members and supporters nationwide,
including 20,000 in the state of Minnesota, it uses the legislative system, the power of public
opinion, and the courts to shape public policy to protect national parks. The proposed NorthMet
project has environmental implications for national parks in Minnesota. Additionally, NPCA is a cochair of the Healing Our Waters Great Lakes restoration coalition, which has successfully advocated
to establish and sustain the Great Lakes Restoration Initiative (GLRI), which has helped improve
the water quality of all of the Great Lakes. The NorthMet project would be located within the Lake
Superior watershed and pose an ongoing pollution threat to Lake Superior long after the proposed
mining period stops.
Western Lands Project (WLP) is a 501(c)(3) nonprofit conservation organization incorporated in
the State of Washington with its office in Seattle, Washington. WLP was founded in 1996 as the
Western Land Exchange Project and has more than 1,000 members, including members in
Minnesota. WLP works for the preservation and protection of the nations public lands. Its mission
is to keep public lands public. To achieve this, it monitors, reviews and submits public comments on
the proposals and actions of the federal land management agencies especially land exchanges and
land sales with the goal of ensuring that the agencies act in the public interest. WLPs members
have visited, and intend to continue visiting, Superior National Forest lands analyzed in the Final
EIS that would be impacted by the Record of Decision.
1.2
Previous comments and other materials
All of the conservation organizations submitted comments on NorthMet Supplemental Draft

Environmental Impact Statement (SDEIS). References throughout this objection letter will be made
to those comments, along with supplemental letters. For example, MCEA 5 refers to page 5 of
MCEAs comments on the SDEIS. The five SDEIS comment documents that are cited in this
objection are MCEA, Friends, CBD, VNPA, and NPCA. SOS, NMW, SLSA, Friends of the Cloquet
Valley State Forest, and the Sierra Club either submitted SDEIS comments jointly with CBD, or
separately submitted the same document. Thus for these five organizations, page numbers from the
SDEIS comments are exactly the same as those for CBD. To simplify the citations, all five
organizations are included in all citations to CBD comments.
The FEIS Response to Comments does not address many of the issues the conservation
organizations raised in comments on the SDEIS, as is required by CEQ regulations.1 For other
issues, the agency response is insufficient to meet legal requirements. Furthermore, the Co-Lead
Agencies efforts at categorizing the comments resulted in a failure to respond to technical and
specific comments, many of which were made by groups or individuals with considerable expertise.
Categorizing comments by theme placed general public comments in the same category as specific
comments by experts, resulting in a lack of response to expert and technical comments.
The short time frame allowed to review the FEIS does not allow for sorting out and rewriting all of
the arguments and support for our issues in this objection letter. Instead, we are appending three
1
40 C.F.R. 1502.10(b) and 1503.4.

3
comment letters, those from MCEA, Friends, and CBD, along with all expert reports and exhibits
that accompanied those comments, to this objection. All arguments, reasoning, and supporting
material referenced therein is hereby incorporated into this objection letter.
Each reason for which we object to the proposed Forest Service action is enumerated below in this
letter, with specific page references to incorporated materials from the three SDEIS comment letters
and supplemental letters submitted since the SDEIS comment deadline. All of the argument,
analysis, commentary, and exhibits cited on the referenced SDEIS comment pages should be
considered in support of our objection.
We note that the Forest Service regulations limit the issues raised to those that are included in an
objectors earlier comments on environmental review documents unless the issue is based on new
information.2 We believe that all of our issues meet this requirement. To the extent that the Forest
Service disagrees, we point out that this requirement inappropriately attempts to curtail the rights of
citizens. In regards the National Environmental Policy Act (NEPA), the CEQ regulations make it
clear that citizens have a right to comment on an FEIS for at least 30 days, and until the time when a
final agency decision is made.3 The CEQ regulations do not limit this right to issues presented in
comments on the draft EIS.
In regard to the Federal Land Policy and Management Act (FLPMA), the National Forest
Management ACT (NFMA) and the Weeks Act, the substantive requirements of these acts and the
ways in which the Forest Service intends to meet those requirements were not set forth in the
SDEIS.4 Nor is that the role of a Draft EIS. The Forest Service regulations attempt to require the
public to comment on a document (the Draft Record of Decision) before that document is available,
and on agency positions before they are known. If the Forest Service believes that any issues
included in this document do not meet the requirements of the regulations, we challenge the
regulations as arbitrary and capricious or not in accordance with governing law.
As citizens of the United States, the members of our organizations have a constitutional right to
petition the government for the redress of grievances. This includes the right to communicate with
federal agencies regarding our concerns about agency decisions. In this particular situation, the
Forest Service regulations that attempt to limit agency consideration (and presumably, judicial
review) to issues raised during a 90-day window over a multi-year process is patently unreasonable.
The SDEIS for this project was more than 2,000 pages long, and still did not present much of the
most crucial information regarding environmental impacts. That information had to be ferreted out
of dozens of supporting documents, many of which were also thousands of pages long. References
in the SDEIS to supporting documents provided no page numbers, and were often missing
altogether or referenced information or material that did not actually exist.
2
36 C.F.R. 218.8(c).
40 C.F.R. 1503.1(b).
4
See FEIS App. A at A-394, Theme LAN 02 (The ROD would contain the findings and supporting
rationale for the selected alternative, would discuss how the public interest is served under 36 CFR
254.3(b), and would provide information for compliance with Forest Service requirements and
Forest Plan.);
3
Several of the conservation organizations contacted the Co-lead Agencies during the SDEIS
comment period asking for more time; those requests were denied. We are attaching letters that
made these requests as Exhibits 1b through 1d.5 The CEQ regulations require a minimum comment
period of 45 days, along with the suggestion that an EIS should be at most 300 pages long.6 By that
measure, a comment period of at least 270 days would have been appropriate. Any attempt to limit
issues to those raised during a 90-day window based on the Forest Service regulations would indicate
that the regulations are arbitrary and capricious, and violate our members rights to petition the
government for the redress of grievances.
1.3
Exhibits and reports
In addition to previously submitted comments, reports, and exhibits, this objection letter references
and incorporates the attached reports of the following technical experts:
-
Dr. David Chambers, geophysicist; focus: mining engineering and planning;

Keith Gadway, environmental engineer; focus: groundwater transport of pollutants
Dr. Paul Glaser, wetland geohydrologist; focus: hydrology and wetlands;
Dr. Tom Myers, hydrogeologist; focus: hydrologic modeling;
Dr. Glenn Miller, geochemist, focus: water quality and treatment;
Dr. Ann Maest, geochemist, focus: geochemistry and water quality
Dr. Michael Malusis, geotechnical and geoenvironmental engineer; focus: barrier and
containment strategies; and
Victoria Stamper, air quality specialist; focus: air quality
Dr. Michael Twiss, limnologist; and Dr. Thomas Holsen, environmental engineer; focus: air
deposition and water quality
Please consider these expert reports and associated attachments as parts of this objection. In
addition, the Conservation Organizations are delivering with these comments a disc of reference
materials and additional supporting documents. Please ensure that these reference materials are also
included in the record and made part of this submission. If the Forest Service requires hard copies
of the reference and supporting documents to ensure that they are made part of the record, please
let us know and we will supply hard copies.
Our objections to the land exchange are based on the National Environmental Policy Act (NEPA),
the Federal Land Policy and Management Act (FLPMA), the National Forest Management Act
(NFMA), and the Weeks Act.
Kathryn Hoffman to Co-lead Agencies, Request for Comment Period Extension on the SDEIS
(March 5, 2014) (Attached as Exhibit 1b); Steve Morse et al. to Co-lead Agencies, NorthMet
Supplemental Draft Environmental Impact Statement Comment Period (Dec. 20, 2013) (Attached
as Exhibit 1c); Jane Reyer to Co-lead Agencies, Letter (Feb. 17, 2014) (Attached as Exhibit 1d).
6
40 C.F.R. 1506.10(c), 1502.7.
5
A. National Environmental Policy Act

The National Environmental Policy Act (NEPA) is our national charter for protection of the
environment.7 NEPA requires agencies to evaluate and publicly disclose the potential
environmental impacts of proposed actions.8 NEPA ensures that the agency, in reaching its
decision, will have available, and will carefully consider, detailed information concerning significant
environmental impacts; it also guarantees that the relevant information will be made available to the
[public] that may also play a role in both the decisionmaking process and the implementation of that
decision.9
NEPA requires agencies to prepare a detailed environmental impact statement (EIS) for major
federal actions that may significantly impact the environment.10 The information in an EIS must be
of high quality, as accurate scientific analysis, expert agency comments, and public scrutiny are
essential to implementing NEPA.11 Agencies must therefore insure the scientific integrity of the
analysis in an EIS.12 If a Final EIS is held insufficient, the federal action for which it was prepared
may not go forward until the deficiencies are corrected.13
For the reasons set forth below, and as explained in earlier comments provided by the objectors, the
FEIS for the proposed NorthMet mine and land exchange fails to comply with NEPA.
2.0
Details of Financial Assurance Must Be Disclosed to Effectively Assess Mitigation

Measures and Socioeconomic Impacts.
All predictions made by the FEIS regarding activities after closure, including but not limited to
reclamation, mitigation measures, water treatment, transitions to new technology including reverse
osmosis (RO) at the Waste Water Treatment Facility (WWTF) are unsupported without analysis of
financial assurance.14 This FEIS also relies to an extraordinary degree on adaptive management
strategiesused incorrectly here as merely monitoring plans with general descriptions of potential
strategies that could be used if problems arisethat will require action after Year 20, when PolyMet
says it will cease mining operations. But adaptive management strategies can only be deployed if
there is money to pay for them. Thus, all adaptive management strategies identified in the FEIS are
also unsupported without specific financial assurance information.
40 C.F.R. 1500.1(a).
Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371 (1989).
9
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).
10
42 U.S.C. 4332(2)(C).
11
40 C.F.R. 1500.1(b).
12
Id. 1502.24.
13
See, e.g., North Carolina v. Virginia Beach, 951 F.2d 596, 605 (4th Cir. 1992) (upholding injunction
against construction of pipeline).
14
This issue was raised in comments on the SDEIS at MCEA 2, 26-33; Friends 37, 43-47; CBD 3436, 43-46, VNPA 5, which along with all cited references and reports are attached and incorporated
herein.
8
Dr. Chambers elaborates on the specific legal and scientific obligations of an agency overseeing
environmental review of a mining operation to provide financial assurance details in his attached
report. In addition, the Conservation Organizations have attached an example of an EIS that
provides far greater details concerning financial assurance, the Final EIS for the Idaho Cobalt
Mine.15
The Co-Lead Agencies have continually alleged that there is no obligation to provide financial
assurance information until permitting.16 The FEIS states that [n]either NEPA nor MEPA rules
require that all financial assurance mechanisms be in place before the EIS is finalized.17 However,
the Co-Lead Agencies misstate the concern here. The Conservation Organizations are not
suggesting that any financial assurance mechanisms should be in place before the EIS is finalized.
We are saying that details regarding the financial assurance package need to be included the FEIS in
order to understand the potential impacts of the project as analyzed under NEPA or MEPA.
The FEIS is limited to statements that there will be a financial assurance package of some sort, and
that it will meet the requirements of Minnesota Rules. If this was all the information required for an
EIS to assess potential impacts and mitigation measures, than an EIS could be quite short. The
section on water quality impacts, for instance, could simply state that the mine is governed by the
Clean Water Act and therefore will not violate any water quality standards or other state or federal
laws. But that is not how adequate EISs are written. Rather, under state and federal law, EISs must
provide substantive analysis and scientific support for their statements. It is not enough to allege
that the project will have no impact because it will comply with the law; if the FEIS concludes that
the project will have no significant impact, the FEIS must demonstrate that the project is designed
to comply with the law, and capable of minimizing potential impacts to support its statements.
The reason for this is that NEPA is designed to be more than a box to be checked by agencies; an
EIS is an action-forcing document designed to ensure that agencies have thoroughly studied the
impacts of a project before making any irretrievable commitment of resources.18 The EPA has
estimated that total liability for cleanup of all hardrock mines across the US is between $20 and $54
billion.19 This particular FEIS states the need for extensive work after closure, including the
requirement that two active waste water treatment plants with a particularly expensive form of
treatment run for an indefinite period of time. Without adequate financial assurance determined and
supported in the FEIS, a foreseeable impact of any mine would be that, upon closure, whether
planned or unplanned, there will be insufficient funds available and either the state or federal
government will need to bear the cost of reclamation, cleanup and long-term treatmentor those
15
Attached as Exhibit 2a (Financial Assurance Cost Estimate for the Idaho Cobalt Project).
See, e.g., FEIS A-367 (FEIS Section 3.2.2.4 provides available details regarding financial
assurance as required under NEPA/MEPA...Additional details on the financial assurance that would
be required for the project would be addressed during permitting.)
17
Id.
18
See Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989).
19
U.S. Environmental Protection Agency, Office of Solid Waste and Emergency Response, Cleaning
Up the Nations Waste Sites: Markets and Technology Trends, EPA-542-R-04-015 at 11-13 (2004)
(Attached as Exhibit 2b.
16
activities will not take place and the site will cause significant impacts to the environment. Any
agency that permits a mine without determining whether the financial assurance amount is adequate
has not assessed this impact, and risks making an irretrievable commitment to a project without fully
understanding the consequences, in violation of NEPA.
3.0
The Final EIS Must Assess the Underground Mine Alternative as a Feasible and
Prudent Alternative.
NEPA requires agencies to study, develop, and describe appropriate alternatives to recommended
courses of action in any proposal that involves unresolved conflicts concerning alternative uses of
available resources.20 An agency must look at every reasonable alternative, with the range dictated
by the nature and scope of the proposed action.21 MEPA similarly requires that an EIS compare
the potentially significant impacts of the proposal with those of other reasonable alternatives to the
proposed project.22 Additionally, the Clean Water Act prohibits the discharge of dredge and fill
material if there is a practicable alternative to the proposed discharge which would have less
adverse impact on the aquatic ecosystem.23 Where a proposed action is not water dependent,
practicable alternatives that avoid special aquatic sites are presumed to be available, unless clearly
demonstrated otherwise.24 In other words, the permit applicant bears the burden of showing that no
practicable alternatives with less adverse impact are available.
The alternatives section is considered the heart of an EIS.25 The Co-Lead Agencies are expected
to [r]igorously explore and objectively evaluate all reasonable alternatives and [d]evote substantial
treatment to each alternative considered in detail including the proposed action so that reviewers
may evaluate their comparative merits.26
The NorthMet environmental review process identified underground mining as an alternative for
assessment, but the Co-lead Agencies ruled it out. They concluded that the Underground Mining
Alternative is not . . . a reasonable alternative because it would not be economically viable and
therefore it would also not meet the Purpose and Need.27 This conclusion rests on errors and
discrepancies in the estimates of mining costs, as explained below.
Furthermore, the FEIS states that the geology outside of the open pit has not been characterized
enough to support a mine plan and is beyond the boundaries of the NorthMet Project area, so it is
20
42 U.S.C. 4332(E); 40 CFR 1508.9(b).

Northwest Envtl. Defense Center v. Bonneville Power Admin., 117 F.3d 1520, 1538 (9th Cir. 1997).
22
Minn. R. 4410.2300(G).
23
40 C.F.R. 230.10(a).
24
Id.
25
40 C.F.R. 1502.14; see also Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664 (7th Cir. 1997)
(when preparing an EIS, an agency must consider all reasonable alternatives in depth, and [n]o
decision is more important than delimiting what these reasonable alternatives are).
26
40 C.F.R. 1502.14.
27
FEIS 3-160.
21
not reasonable to include for consideration of the Underground Mining Alternative.28 This
statement is not true. While PolyMet may not yet have prepared a mine plan or assessed the
economic viability of resources outside of the pit envelope, the geology for at least some of these
resources is characterized enough to support a mine plan should PolyMet choose to prepare one.
And while we do not find a specific definition of the NorthMet Project area in the FEIS, it is
generally treated as including the entire area designated as the mine site.29 At least some of the
additional mineralization that is well-characterized is found within what the FEIS shows as the
project area.
The determination that an underground mine is not a reasonable alternative is not supported by the
evidence. This issue was raised in our comments on the SDEIS at MCEA 2, 33-35, Friends 2, 48,
51-52; and CBD 108-110. It was also raised in a supplemental letter from Jane Reyer to Forest
Supervisor Brenda Halter on October 8, 2015. All of these materials are attached and incorporated
herein.
3.1
The determination that underground mining would not be economically viable rests
on errors and discrepancies in estimating costs of mining.
The basis of the FEISs economic analysis is quite simple: a value was calculated for the amount of
ore to be mined on the one hand, and for the total costs of mining that ore on the other. If the costs
were greater than the value of the ore, the mine was deemed not economically viable. The FEIS
analyzed five mining rates ranging from 2000 tons per day to 15,000 tons per day.30 To simplify the
following discussion, we focus on the 7500 tons-per-day scenario because that is the scenario with
the most positive economics according to the FEIS analysis.31 The Co-lead Agencies presented an
overall loss for this scenario of $168 million.32 It appears that all of the numbers used in the Co-Lead
Report were taken directly from Foth Infrastructure & Environment, LLC, Economic Assessment
of Conceptual Underground Mining Option for the NorthMet Project (Oct. 2012) (hereinafter, Foth
2012), which was prepared on behalf of PolyMet and is also provided in Appendix B of the FEIS.33
Operating costs
The FEIS divides total estimated costs of mining into operating costs and pre-production capital
costs.34 Operating costs on a per-ton basis are provided in Table 1 of the Co-Lead Report. At the
7500 ton-per-day level, total operating costs are estimated at $49.00 per ton, and pre-production
capital costs are estimated at $250 million total.35
28
FEIS 3-159.
See, e.g., FEIS 1-5 and 3-1, and Figures 3.2-1 and 3.2-7.
30
FEIS App. B, Co-Lead Agencies, Underground Mining Alternative Assessment for the NorthMet
Mining Project and Land Exchange EIS at 7 (Sept. 27, 2013) (hereinafter, App. B).
31
Id.
32
Id.
33
Compare App. B Table 2 at 7, with App. B Attachment 1, Table 3 following page 15.
34
App. B at 7.
35
Id.
29
Foth 2012 divides operating costs into three components: mining costs, processing costs, and
general and contingency costs.36 The Foth 2012 report estimates costs for the 2000 and 5000 ton
scenarios, and then adjusts these for the larger scenarios.37 To arrive at its estimates, Foth drew from
several sources, including InfoMine (an online model commonly used by the industry), examples
from other mines drawn from 43-101 reports filed on SEDAR, and a memo prepared for this
purpose by AGP Mining Consultants Inc. (AGP), which has done much of PolyMets engineering
work.38
For mining costs, the Foth 2012 report provides cost estimates for both room-and-pillar mining and
long-hole open stoping. Many of the estimates did not include cemented backfill, although Foth
states Cemented backfill typically represents roughly 20% of mining costs.39 The report settles on
a mining cost of $40 per ton for the 5000 tons-per-day scenario. This amount is significantly higher
than any estimate from any source used in the Foth 2012 report.
The only source that estimates mining costs above $30 per ton for the 5000 tons-per-day scenario is
the AGP Memo, which Foth reports as $44 to $52 at 5000 tons per day for long-hole stoping.40
However, the AGP Memo provides this figure for total operating costs (including processing and
administrative),41 while the Foth 2012 report uses it for mining costs only. The Foth 2012 analysis
then goes on to add processing and administrative costs again to reach a total operating cost, which
doubles the estimated processing and administrative costs included in the total operating cost
estimate.
The estimates that Foth 2012 later uses for processing and general and contingency costs are $13
and $3.50 per ton, respectively.42 If these are subtracted from the AGP total operating costs, the
AGP estimate for mining costs alone is $22.50 to $33.50 per ton at the 5000 ton-per-day level.
Foth 2012 also included cost estimates from InfoMine.43 InfoMine estimates the cost of long-hole
stoping with sand backfill at $20 per ton for 5000 tons per day; adding 20 percent to that for
cemented backfill gives $24.00 per ton, very much in line with the AGP report. Finally, Foth 2012
included one comparison mine, Podolsky/Levack/McCreedy West in Sudbury, Ontario, which has
36
App. B Attachment 1 at 6-7.

Costs-per-ton go down as the amount mined per day increases. For example, Foth calculated the
total operating cost-per-ton for 5,000 tons per day at $56 per ton, as compared to $49 per ton for
7,500 tons per day. This is complicated by the fact that the reduction is not linear; the costs-per-ton
go down rapidly at the 1,000 to 2,000 to 5,000 tons-per-day level, but the decrease begins to flatten
above that point, with little cost decrease on a cost-per-ton basis for large-scale mining.
38
Gordon Zurowski, Memorandum re: High Underground Costs (Nov. 11, 2011) (attached as
Exhibit 3b) (hereinafter, AGP Memo)
39
App. B Attachment 1 at 7.
40
App. B Attachment 1 at 7. In contrast, the figures given in the AGP memo are $42 to $50. Foth
gave no explanation for this discrepancy.
41
Ex. 3b at 2.
42
App. B Attachment 1 at 7-8.
43
Id.
37
10
mining costs of $38 for 2250 tons per day.44 Scaling that to 5000 tons per day would come to about
$26 per ton. These are all of the estimates provided, and they agree to a remarkable extent. And yet
Foth 2012 sets the estimate for 5000 tons-per-day at $40 per ton. This cost estimate has no support
in the record.
The $40 figure seems less inflated for room-and-pillar mining, but is still questionable. The only
source cited by Foth 2012 is InfoMine, which gives a $32 per ton cost at 5000 tons per day, without
backfill.45 Adding 20 percent to that gives $38.40. However, the Foth 2012 report fails to mention
that AGP estimated room-and-pillar mining without backfill at $22 to $28 per ton, which with 20
percent added would be $24.40 to $33.60.46 The Foth 2012 report provides no comparison mines
for room-and-pillar mining. At any rate, the alternative of underground mining should not be
eliminated from NEPA review based on economics if any environmentally acceptable underground
mining method shows a profit in the screening analysis; more expensive methods should be
irrelevant to this analysis.
Using its $40-per-ton estimate for the 5000 ton-per-day scenario, Foth estimated $33-per-ton for a
7500 ton-per-day scenario.47 This amounts to a 17.5 percent reduction. Using the same percentage
reduction for the maximum cost estimate from any source ($33.50, the maximum amount in the
AGP memo) gives a figure of $27.64 per ton. Once again, in the context of eliminating an alternative
from NEPA review based on economics, the lower (or at least average) cost estimates should be
used, and this estimate is still on the high end of the various figures given by Foth 2012. We also
point out that AGP does not provide a basis for its estimates; as far as we can tell, there is no
support for its estimates in the record. Nonetheless, for the sole purpose of showing that the
economic analysis included in the FEIS does not indicate an operating loss for at least one scenario,
we will use $27.64 as an estimated mining cost.
The second of the three categories of costs included in total operating costs is processing costs. Foth
adopts the InfoMine processing cost for a three-concentrate flotation mill of $13 per ton at 5000
tons per day, after noting comparable values at Copperwood in Michigan ($11.75 per ton) and Lac
des Iles in Thunder Bay ($14 per ton).48 It goes on to scale this to $12.50 per ton for the 7500 tonsper-day level.49 Remarkably, the report ignores PolyMets own processing cost estimate for
processing ore from the open pit, which is $6.99 per ton.50 We were unable to extrapolate this to a
smaller operation because of unknown scaling factors, but would expect this to be considered in a
legitimate economic analysis.
44
Id.
Id.
46
Ex. 3b at 2.
47
No basis for this calculation is provided. Foth 2012 at 9.
48
App. B attachment 1 at 7.
49
Id. at 10.
50
Exhibit 3c (AGP, Updated NI 43-101 Technical Report on the NorthMet Deposit 22-2 (Jan. 14,
2013)).
45
11
The last of the three categories of operating costs is administrative costs. Because different mines
label this category differently, it is difficult to compare the numbers from various sources. Foth does
not provide an InfoMine estimate for this cost. The examples provided include $3.30 for general and
$2.00 for contingency per ton at Lac des Iles (presumably for a total of $5.30 per ton); and $3.35 per
ton for general and administrative at Copperwood. The report settles on an estimate of $3.50 per
ton.51 This cost apparently does not change based on tonnage; the same cost-per-ton is used in all
scenarios.52 Again, the report completely ignores PolyMet-specific information, which estimates
general and administrative cost for the open pit mine at $0.66 per ton.53
Using the numbers discussed above, Foth 2012 reaches a total of $56.50 per ton for total operating
costs at the 5000 ton-per-day level, and $49 per ton at the 7500 ton-per-day level. Based on the
above discussion, these estimates are clearly inflated. Even if the processing and administrative costs
are not adjusted based on PolyMets own estimates, and the only correction made is for the
discrepancy in the AGP figures, the estimate at the 7500 ton-per-day level would be $42.64.
Capital Costs
Capital costs are also significantly overstated because they fail to account for the savings that
PolyMet will achieve due to the use of an existing processing plant. Rather than using PolyMetspecific information, estimates were based on industry costs drawn from InfoMine.
Foth provides separate InfoMine estimates for mine capital costs and processing plant capital costs.
The Foth 2012 report estimated mine capital costs at 7500 tons per day at $125 million for roomand-pillar mining without backfill (adding 20 percent gives $150 million) and $115 million for longhole stoping with sand backfill (adding 20 percent gives $138 million).54
For the processing plant, Foth 2012 provides an InfoMine estimate for a three-concentrate flotation
mill of $98 million at the 7500 tons-per-day level, which Foth adopts as its estimated processing
plant cost.55 However, PolyMet provides an estimate of its own processing plant at 32,000 tons per
day, which is $63 million.56 The significantly lower cost is the primary savings that PolyMet will
achieve by using an existing processing plant.
Again there are scaling considerations; the total capital cost at 7500 tons-per-day should be lower
than the cost at 32,000 tons per day. However, again solely for the purpose of this discussion we will
use the $63 million estimate. Foth also added a contingency amount of approximately 10 percent to
the mine and process plant capital costs to calculate the total capital costs.57 Adding 10 percent
51
App. B attachment 1 at 7-8.

Id. at 10.
53
Ex. 3c at 22-2.
54
55
Id.
56
Ex. 3c at 21-5, Table 21-2.
57
52
12
contingency gives a total capital cost of $234 million for long-hole stoping. This is in comparison to
a $250 million estimate used by Foth and the Co-lead agencies.
Total Cost
To be clear, we are not arguing that the amount presented here is an appropriate estimate of
underground mining. We think that that estimate would be significantly less based on a number of
factors described above for which we have made no adjustment. Our only purpose here is to show
that after correcting only the two most obvious discrepancies in the economic analysis prepared by
Foth, the analysis does not show a loss at the 7500 ton-per-day level. Using an operating cost of
$42.64 per ton and a total pre-production capital cost of $234 million results in a net profit of $39
million.
3.2
Mineralization outside the pit envelope
The existence of ore outside the pit envelope is a critical factor in determining whether an
underground mine will be economical, because limitation to the pit envelope artificially limits the
amount of ore of a particular grade that is available for mining. Co-Lead Report Table 2 provides
net metal value for the five mining scenarios. Dividing this number by the total tons to be mined
provides a value per ton. This exercise reveals that at the lower production rates, the minerals to be
extracted have a higher per-ton value. The range is from $60.40 per ton for the 5 million ton
scenario to $41.42 per ton for the 100 million ton scenario. These values are apparently based on
how much ore there is in the pit envelope for each of the net metal values. That is, there are 5
million tons of mineable ore within the pit envelope with an average metal content worth $60.40 per
ton; 30 million tons with an average metal content worth $51.73 per ton; and 50 million tons with an
average metal content worth $47.72 per ton.
Including mineralization beyond the pit envelope would affect the amount of ore available at each
net-value-per-ton level. As an example, assume that the mine could be extended into an area that
would provide 50 percent more ore of a given grade than is available within the pit envelope. The
outcome would be that, for example, 30 million tons of ore would grade at $53.85 per ton (the CoLead Report Table 2 net metal value per ton for 20 million tons of ore) rather than $51.73 per ton.
Mining costs might go up somewhat due to the increased area to be mined, but other costs would
remain the same. This could add up to $2.12 per ton in net value, or a total of $60 million to the
mines profit in the 7500 tons-per-year scenario.
AGP prepared both the mine plan and PolyMets NI 43-101 Technical Report, and thus is very
knowledgeable about the NorthMet deposit. The AGP report for the underground mining
economic analysis provides the following table, which indicates that for one 5000 ton-per-day
scenario, more than half of the economic ore lies outside of the proposed pit:58
58
Ex. 3b at 3.
13
A graphic representation is also provided:
North-South Cross-section of one area of proposed mine, showing the resources available under different mining
methods by color and the open pit outline.59
In light of this evidence, Foth 2012 goes into several obfuscations as to why an economic
assessment of an underground mine should be limited only to the ore in the proposed pit. The
obfuscation begins with Foths special definition of NorthMet deposit for the purposes of the
Underground Mining analysis: The term NorthMet deposit used in this report will refer to NI 43-101
compliant measured and indicated mineral resources within the open pit.60 The Co-Lead Agencies use
information straight from the Foth 2012 report without mentioning this special definition. They
thus state The NorthMet deposit is considered to be a near-surface, bulk, low-grade
mineralization,61 when the reality is that most of the mineralization at the NorthMet site is not near-
59
Ex. 3c at 9.
App. B attachment 1 at 3 (emphasis in original).
61
App. B at 5.
60
14
surface. For example, NorthMet consists of seven igneous units that dip southeast, with most
economic sulfide mineralization in the lowermost unit.62 And:
Though grades vary, Unit 1 is also mineralized to the east of the deposit, down-dip (south)
to depths of at least 2,500 feet, and past the limits of expected pit development in the west.
The development of waste rock stockpiles over these areas is not expected to encumber any
material that could reasonably be classed as ore because the upper units are barren and the
Unit 1 mineralization is from 1,700 to over 2,500 feet below ground surface.63
Furthermore, the statement in the FEIS that the geology outside of the open pit has not been
characterized enough to support a mine plan is flatly untrue for at least some areas. According to
PolyMets 2013 43-101 SEDAR filing, ore within the pit envelope accounts for significantly less
than half of measured and indicated resources.64 Under Canadian regulations, measured and
indicated resources are used to estimate the economic viability of a potential mine. The focus of
the Foth 2012 report on the identification of mineral reserves as a limiting factor is just another
obfuscation; the term mineral reserves carries no additional meaning in regard to the level of
characterization of the geology. Rather, mineral reserves simply indicates measured and indicated
resources for which a mining company has prepared an economically viable mine plan.65
The reality is that the only reason that the economic assessment for underground mining of the
NorthMet deposit has been limited to the ore within the pit envelope is because this is the ore that
PolyMet plans to mine in its first stage of open pit mining. Mineral reserves were delineated based
on economics and other factors specific to open pit methods. This has nothing to do with the level of
characterization of the geology. And using the same specified ore body to assess the economic
viability of underground mining is an exercise designed to fail.
Measured and indicated resources do not become mineral reserves until a mine company has a mine
plan showing that they can be mined economically using a particular mining method. To put it
another way, with regard to an underground mine, minerals within the pit envelope can no more be
referred to as mineral reserves than can those outside of the pit envelope. Cutting the assessment
off at the boundary of the proposed pit is the epitome of an arbitrary decision.
The Foth 2012 report is at best disingenuous in its explanation of the deposit and what is known
about it:
There is mineralized rock outside of the volume of rock contained within the proposed
open-pit. This mineralized rock occurs below the open-pit. While this mineralized rock is
excluded from this report, speculatively it may be possible for it to be economically viable to
62
PolyMet 2007b at 13 (PolyMet NorthMet Geology and Resource Background (Jan. 2007)).
Id. at 24.
64
Ex. 3c at 22-3.
65
CIM Definition Standards for Mineral Resources and Mineral Reserves (May 10, 2014) (attached
as Exhibit 3d).
63
15
extract decades in the future. Only approximately 10% of the measured and indicated resource is below
the open-pit.66
Compare this to the statement from PolyMets SEDAR filing quoted above: The pit plan is not
fully optimized and the 20-year permit application covers significantly less than half of the measured and indicated
resources.67 The SEDAR filing reports measured and indicated resources of 442 to 694 million tons.68
Mineral reserves (i.e., measured and indicated resources within the pit envelope) are reported at
274.7 million tons.69
Perhaps the Foth 2012 statement can be regarded as technically true if only 10 percent of measured
and indicated resources lie directly underneath the planned pit; however it is clearly not true that only
10 percent of the measured and indicated resources are located outside the pit envelope at a depth
amenable to underground mining.
Foth 2012 goes on to discuss inferred resource to further confuse matters:70 The majority of
inferred resource defined by PolyMet (2008) is below the open-pit. There is a lack of geological data
to characterize the deep mineralized rock that in turn results in a lack of geological confidence
leading to the inferred classification.71 Once again, this may be technically true as applied only to
the inferred resources, and yet misleading in regard to measured and indicated resources. In other
words, the presence of inferred resources at depth does not mean that significant amounts of
measured and indicated resources are not also present at depth. While it is likely true that PolyMet
has insufficient information for some areas of mineralization to include them in an economic
analysis, it is also true that there are mineralized areas outside of the mine pit for which it does have
sufficient information.
In the 1970s U.S. Steel (USS) engaged in a very extensive program of drilling to define an
underground mining resource. According to PolyMets geology background document There is
every indication that the sampling and analytical work performed by USS was thorough,
professional, of a high standard, and reliable.72 All of the USS drill core and data is available to
PolyMet, and much of it is in PolyMets database.73 As of 2007, USS had obtained more linear feet
of drill core and had drilled almost as many holes as PolyMet.74 The USS drilling was all done with
the intent of developing an underground mine, and is thus concentrated in the areas where
66
App. B attachment 1 at 3 (emphasis added).

Ex. 3c at 22-3 (emphasis added).
68
Id. at 1-5 to 1-6.
69
Id. at 15-3.
70
Inferred resources have a lower level of confidence and cannot be used to establish mineral
reserves. Ex. 3d.
71
72
Polymet 2007b (PolyMet NorthMet Geology and Resource Background) at 38.
73
Id. at 38-39.
74
Id. at 5, Table 2.
67
16
mineralization was known to be greatest at depth. While about 50 percent of the USS drill core has
not yet been assayed, it is available at the Coleraine Minerals Research Laboratory.75
NEPA requires agencies to undertake necessary research when important relevant information is not
readily available but could be obtained.76 Refusing to assess an important and potentially viable
alternative based on lack of information when the missing information is obtainable does not
comply with NEPA.
As a final note, we object to the lack of documentation of the figures provided by Foth and accepted
by the agencies. We do not object to the use of InfoMine for estimated costs, in fact we think that it
is a more reliable source than analog mines chosen at the discretion of PolyMets contractor, who
has every reason to identify the costliest mines possible for the analysis. However, it is unclear how
or why the InfoMine figures that were included were chosen. For example, underground mine cost
data available from InfoMine includes production rates up to 45,000 tons per day.77 The analysis
needs to explain why Foth limited its InfoMine estimates to the 5000 ton-per-day level and used its
own scaling factors (which also need explanation) for the larger scenarios.
Throughout the exercise, the Foth cost estimates are given with no explanation as to why any
particular number was settled on. For each parameter, the Foth 2012 report lists figures from
different sources, and then comes up with a number without any explanation or reasoning. It
justifies those numbers by comparisons to other mines, but provides no explanation of why the
mines used were chosen. The costs from analog mines are consistently higher than those from
InfoMine, which is commonly used by the industry and would provide a less biased assessment.
It is also unclear what information either Foth or the agencies rely on for statements relating to
characterization of the ore body. For example, where is the data indicating that the NorthMet
deposit is a shallow ore body, or that less than 10 percent of the measured and indicated resource
is below the open pit? If the Co-lead agencies in fact did anything more than rubberstamp the Foth
report, they need to make their analysis transparent. NEPA requires that the underlying data that
forms the basis of conclusions in the FEIS be made available to the public.78
75
Id. at 33-34, 37.

40 C.F.R. 1502.22; National Parks & Conservation Assn v. Babbitt, 241 F.3d 722, 733 (9th Cir.
2001) (The Parks Services lack of knowledge does not excuse the preparation of an EIS; rather it
requires the Parks Service to do the necessary work to obtain it); Save Our Ecosystems v. Clark, 747
F.2d 1240, 1244 n.5 (NEPA law requires research whenever the information is significant. As long
as the information is . . . essential or significant, it must be provided when the costs are not
exorbitant in light of the size of the project and the possible harm to the environment).
77
InfoMine, Mining Cost Models, accessed at
http://costs.infomine.com/costdatacenter/miningcostmodel.aspx#more-cost at 4 (last visited Dec.
17, 2015) (attached as exhibit 3e).
78
See 40 C.F.R. 1502.21; Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1150 (9th Cir. 1998)
(NEPA requires that the public receive the underlying environmental data from which a Forest
Service expert derived her opinion).
76
17
The obfuscations and biased analysis of PolyMets contractor and the failure of the Co-lead
Agencies to properly review the contractors work or perform their own independent analysis has
resulted in the summary rejection of an alternative that could result in significantly less
environmental harm than the proposed project, in violation of NEPA, MEPA, and the Clean Water
Act. Before going forward toward permitting an open pit mine and all the destruction that entails,
the agencies must take an honest, hard look at the possibility that an underground mine might be a
viable option.
4.0
The Co-Lead agencies erroneously rejected the backfilling of the West Pit.
The Co-Lead Agencies failed to take a hard look at this alternative, instead eliminating it as an
alternative without substantive analysis.79 This issues was raised in SDEIS comments at MCEA 2,
33, 3539; Friends 2, 4952; CBD 110111, which are attached and incorporated herein.
Under NEPA, the FEIS must:
examine all reasonable alternatives to the proposal. In determining the scope of alternatives
to be considered, the emphasis is on what is reasonable rather than on whether the
proponent or applicant likes or is itself capable of carrying out a particular alternative.
Reasonable alternatives include those that are practical or feasible from the technical and
economic standpoint and using common sense, rather than simply desirable from the
standpoint of the applicant.80
The Co-Lead Agencies claimed that the West Pit backfill would not provide substantial
environmental benefits. Yet they concede that the opportunity to reclaim wetlands vegetation at the
Category 1 Stockpile footprint area and not having to treat seepage from the Category 1 Stockpile
would be measurable environmental benefits offered by backfilling the Category 1 Stockpile into
the West Pit.81 Nevertheless, the Co-Lead Agencies eliminated the alternative for consideration
based on several factors, which are addressed below:
Backfilling would affect the water quality in the West Pit by increasing constituent loads, so additional
mechanical treatment of water in the West Pit may be required for a certain timeframe following
backfilling. However, there would be no effect on surface water quality discharged to the environmental
because mechanical treatment of water from the West Pit would still be required in the long term.82
Backfilling may actually decrease required mechanical water treatment at the site because it
eliminates the Category 1 stockpile, currently identified as an indefinite source of pollution. It is hard
to imagine how the treatment in the West Pit as a result of a backfill could be longer than the
79
FEIS at 3-161.
CEQ, Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act
Regulations, 46 Fed. Reg. 18,026 (Mar. 23,1981) (attached as exhibit 4a).
81
FEIS at 3-161.
82
FEIS at 3-161.
80
18
projected time for treatment of the Category 1 stockpile. Additionally, the potential for additional
mechanical treatment is speculative at best, as the Co-Lead Agencies did not attempt any modeling
to support this hypothesis.
Submerging the Category 1 stockpile would remove the last permanent stockpile on the site,
improving aesthetics and potentially allowing greater recreational use of the site after closure.
Moving the waste rock from the stockpile into the West Pit would result in prolonged dust, air, and noise
emissions, but these would be unlikely to exceed the respective maximum years modeled during
operations.
Noise, dust and air emissions are only an issue during operations; perpetual active water treatment
and the aesthetics of the site remain for centuries after closure. Any advantages in the latter would
certainly outweigh this minimal impact.
Backfilling the West Pit would encumber private mineral resources that are deeper than the proposed
West Pit. Such an encumbrance is in conflict with the terms of PolyMets current private mineral leases.
The PolyMet lease agreements could be renegotiated, which might involve monetary compensation for the
mineral owners if the minerals are encumbered.
As Conservation Organizations noted in 2014, PolyMet has not provided any support for this claim,
including a copy of any lease or other contract. PolyMet has also not provided any support for the
notion that this pit could or would be remined, something that is quite unusual.83 It would be far
more likely that PolyMet or another entity would choose to expand the proposed mine deeper,
perhaps into an underground mine, rather than close and reclaim the site, if the minerals underneath
were found to be economically desirable.
Moreover, PolyMets current reclamation plan also encumbers deeper mineral rights, probably
beyond reach without extraordinary expense. Dr. Myers notes that to access these minerals after
reclamation, the large volume of pit lake water will need to be entirely pumped and treated to meet
the 10 mg/l sulfate requirement, and the cost and time required for pumping and treating the entire
pit lake prior to re-mining effectively eliminates this as a possibility.84 The presence of polluted
water that must be pumped and treated before discharge may be a greater burden than simply
digging out additional rock.
[B]ecause of the temporal effect that the stockpile would have, the [opportunity to reclaim wetlands and
vegetation at the Category 1 Stockpile footprint area] would be required to be mitigated regardless of
future backfilling or not.
The Co-Lead Agencies are confusing benefit to the company with benefit to the environment. There
is still an environmental benefit to reclaiming wetlands at the site, even if the company cannot claim
83
84
Miller Report attached to MCEA SDEIS comments, 2014, at 6.

Id. at 5; accord Myers Report attached to MCEA SDEIS comments, 2014, at 2.
19
mitigation credits for it. There is value to wetland restoration within the same watershed, which
PolyMet only partially proposes, and on-site mitigation.85 Additionally, as the FEIS noted, such
wetland reclamation credits may be used for contingency mitigation,86 perhaps for the significant
indirect wetland impacts this project is likely to have. These wetlands would offer a financial
advantage to PolyMet, allowing it to save the cost of restoration for contingency mitigation
elsewhere or, if PolyMet does not need the credits, it could establish a wetland bank and sell the
credits to other entities, perhaps other mining companies that need wetland credits within the St.
Louis River watershed.87
[T]he costs associated with backfilling, additional water treatment rates, and encumbrance compensation
determined in revised lease agreements may affect the ability of PolyMet to secure financing.88
As noted by the Conservation Organizations in 2014, this is an assertion by PolyMet offered without
any support whatsoever. It is speculative and the agencies are abdicating their duty to independently
verify statements by the company.89 Moreover, it gives a project proposer extraordinary and
unjustified control over the alternatives analyzed if an alternative is dismissed based on an
unsupported statement by the company that an alternative may affect the ability of the company
to secure financing. The Conservation Organizations are only asking at this stage that the West Pit
Backfill be given consideration as an alternative in the FEIS, not that it necessarily be adopted.
The approach taken to this alternative is to speculate on its comparative benefits and drawbacks
without any real information, rather than gathering the information first and then making the
comparison. The Co-lead Agencies reject this alternative prior to obtaining the very information that
they purport to be using to judge it.
4.1
Alternatives to West Pit Filling.
The EIS also fails to assess alternatives to pumping water to refill the West Pit, which could avoid
forcing discharges north into Yelp Creek. This issue was raised in our comments on the SDEIS at
MCEA 2, 39; Friends 14. Our SDEIS comments are attached to this objection letter, and the
referenced pages along with all cited materials are incorporated herein.
5.0
The EIS must include the alternative of dry stacking the tailings.
The Co-Lead Agencies have improperly eliminated dry stacking or paste tailings as an alternative to
using the pre-existing LTV tailings basin. This issue was raised in a letter from Dr. David Chambers
85
Minn. Stat. 8420.0100;

FEIS at 5-371.
87
Minn. Stat. 8420.0526.
88
FEIS at 3-162.
89
40 C.F.R. 1506.5(a)
86
20
of the Center for Science in Public Participation,90 which was submitted to the Co-lead Agencies by
Friends of the Boundary Waters on April 20, 2015 following the release of the Mt. Polley dam
breach report (discussed below). The letter is attached and incorporated herein.
Although PolyMet wishes to use the old LTV tailings basin because it is located on the site that they
have agreed to purchase, alternative methods of storing waste are technically feasible,
environmentally preferable, and avoid what is possibly the most devastating impact that could occur
at a mine sitethe collapse of a tailings basin, resulting in widespread impacts that could travel and
diffuse for tens or even hundreds of miles when waste spills into moving water.
Dr. Chambers has extensive knowledge of both the tailings dam collapse at the Mount Polley mine
in British Columbia in 2014 as well as PolyMets tailings dam design. In his report, Dr. Chambers
observes that there is no engineering reason for tailings dams to fail at the rate that they do, and that
this is a prime indicator that something is wrong with the way tailings dams are designed,
constructed, and/or operated.91 Dr. Chambers also notes that the tailings basin construction
method used at the PolyMet site is the least safe construction method, and that PolyMet will
continue to use this method. Extending a risky design on top of an old design that itself poses
higher risk, against the recommendation of the Mt. Polley Expert Panel for dry closure, for a facility
that has not yet received regulatory approval, would not be recognizing the long-term risks being
posed to the public.92 Dr. Chambers also recommended that the Hydrometallurgical Residue
Facility should be constructed using dry stack methods.93
Dr. Chambers review was submitted to the Co-Lead Agencies on April 30, 2015, after the release of
the report of an independent expert panel that investigated the cause of the Mt. Polley disaster.
Although this was after the close of the comment period for the SDEIS, it was submitted well in
advance of the FEIS in hopes that the Co-Lead Agencies would recognize the value of the Mt.
Polley recommendations and the inherent risks in PolyMets use of an old tailings dam designed to
store tailings in a way that is no longer considered safe.
The Co-Lead Agencies, in response to Dr. Chambers work, provided only a single paragraph. They
concluded that dry stack tailings did not offer a significant environmental benefit as an alternative.
The analysis is dismissive, failing to provide support or analysis consistent with NEPAs
requirements.94 The three reasons given are addressed below:
90
Letter from David Chambers, PhD physical geography, to Betsy Daub, Policy Director, Friends of
the Boundary Waters (Apr. 30, 2015) (also attached as exhibit 5b).
9191
Id. at 2.
92
Id.; accord Independent Expert Engineering Investigation and Review Panel, Report on Mount
Polley Tailings Storage Facility Breach (2015) (attached as exhibit 5c).
93
Ex. 5b.
94
40 C.F.R. 1502.22. One court explained Section 1502.22 clearly contemplates original research
if necessary and held that NEPA law requires research whenever the information is significant.
As long as the information is . . . essential or significant, it must be provided when the costs are not
exorbitant in light of the size of the project and the possible harm to the environment. Save Our
Ecosystems v. Clark, 747 F.2d 1240, 1244 n.5 (9th Cir. 1984). NEPA envisions that program
21
Industry standard for dry stacking includes the use of a basin liner. Construction of a basin liner on the
existing LTVSMC tailings basin has been evaluated and determined not to be feasible.
As observed by Dr. Chambers, the reason that a basin liner is not feasible is because the tailings
basin is not a stable structure, which should bear more heavily on the Co-Lead Agencies decision.95
Moreover, this comment ignores the fact that a dry-stacking facility could be built somewhere other
than the existing LTVSMC tailings basin.
Use of dry stack technology would require a new tailings basin to be constructed in a different location as
a lined dry stack basin. A separate dry stack tailings basin would increase footprint effects of the project.
The impacts of this could potentially be minimal. Unlike an open-pit mine, where some impacts on
wetlands, streams and other natural features may be unavoidable due to the precise location of a
mineral deposit, a dry-stack tailings facility has more flexibility when it is sited. The Co-Lead
Agencies should be required to investigate potential sites for a dry-stack facility that could minimize
impacts. It may even be possible to site it elsewhere on the LTVSMC property in an area that is
already mining-impacted.
The proposed Project addresses legacy water quality issues of the LTVSMC tailings basin while making
use of the brownfield site for tailings disposal. A separate dry stack tailings basin would not address
LTVSMC tailings basin legacy issues.
PolyMet would still take possession and legal responsibility for permitting at the LTVSMC site.
Discharges from the tailings basin would be required to meet state water quality standards and other
state and federal environmental laws regardless of whether PolyMet uses it as a disposal site in any
event. (See also Section 6 of these comments on the no-action alternative, addressing Cliffs Eries
legal responsibilities to ensure that this site meets state and federal law).
As with the West Pit backfill alternative, the Co-lead Agencies have inappropriately prejudged this
alternative, making assumptions about the benefits and drawbacks that are the very things that an
alternatives analysis is designed to reveal.
Finally, we would like to point out that the current design for the tailings basin does not meet the
requirements of Minnesota Rule 6132.2200. Dry-stacking is an alternative made reasonable by virtue
of the fact that it is the only way that this mine can comply with Minnesota law. This rule states:
formulation will be directed by research results rather than that research programs will be designed
to substantiate programs already decided upon. Id.
95
David Chambers & Stuart Levit, Center for Science in Public Participation (CSP2), to Co-lead
Agencies (December 7, 2015) (Attached as expert report) [hereinafter Chambers and Levit 2015].
22
B. A reactive mine waste storage facility must be designed by professional engineers

registered in Minnesota proficient in the design, construction, operation, and reclamation of
facilities for the storage of reactive mine waste, to either:
(1) modify the physical or chemical characteristics of the mine waste, or store it in an
environment, such that the waste is no longer reactive; or
(2) during construction to the extent practicable, and at closure, permanently prevent
substantially all water from moving through or over the mine waste and provide for the
collection and disposal of any remaining residual waters that drain from the mine waste
in compliance with federal and state standards.
Mine waste includes tailings.96 Reactive mine waste is defined as waste that is shown through
characterization studies to release substances that adversely impact natural resources.97 In other
words, reactive waste is not limited to waste that creates acidic conditions. Heavy metals can leach
from rock under many conditions, some of which do not involve a low pH; whenever those
conditions result in a great enough release of metals to adversely affect natural resources, the rock is
deemed reactive. Thus the PolyMet tailings will be reactive even if they do not result in acid
drainage, because they have been characterized (by PolyMets modeling) to release (at a minimum)
copper, nickel, lead, and arsenic at levels far above surface and/or groundwater quality standards.98
Rule 6132.2200(2)(B) provides two possible means of handling reactive mine waste after closure.
Either the waste rock, tailings, and exposed rock must be left in such a way that they are not
reactive (i.e., they no longer leach heavy metals), or the facilities must be closed in a way that
permanently prevent[s] substantially all water from moving through or over them. Taken together,
the import of the regulations is that nonferrous mine waste and mine pits must be closed in a way
that does not result in a significant amount of water that will have to be treated before it can be
discharged to the environment.
The Statement of Need and Reasonableness for this rule makes it clear that the point of Rule
6132.2200(2)(B) was to preclude perpetual or long term water treatment as a closure option:
[M]erely collecting contact water and treating it in order to meet water quality discharge
standards, without a substantial effort to minimize the amount of water contacting the waste,
has been rejected. While this method may provide acceptable results during active
operations, when the permittee is present, the potential for long-term failure of such a
system, when the operator is no longer available to correct the situation, is too great.
96
Minn. R. 6132.0100, subp. 16.

Id., subp. 28.
98
FEIS Reference PolyMet 2015j (NorthMet Project Water Modeling Data Package, Vol. 2 Plant
Site) 168-202 and Attachment F. The figures in this document show that the tailings will continue to
leach metals at levels above the standards for more than 200 years, which is the point at which the
illustrations end.
97
23
Because of the necessity to provide a permanent solution to the water quality concerns
related to reactive mine wastes, the two required methods of storing these wastes are the
only reasonable methods currently available.99
The current plan for the tailings basin allows the tailings to remain reactive and allows a significant
amount of water to move through the tailings. It thus does not meet the regulatory requirements.
The Co-lead agencies should assess the dry stack alternative as the only suggested alternative that
might meet the requirements of state law.
5.1
Alternative Methods of Dam Construction
The EIS fails to assess alternative methods of dam construction. This issue was raised in our
comments on the SDEIS at MCEA 6, 75; Friends 36. Our SDEIS comments are attached to this
objection letter, and the referenced pages along with all cited materials are incorporated herein.
6.0
The EIS must provide information on what can be expected under the no action
alternative in such a way that it can be compared to the impacts of the proposed
mine.
The FEIS does not adequately assess the no action alternative. This issue is presented at MCEA
40 and CBD 107108, which along with cited exhibits and references are incorporated herein.
An EIS must include no action as one of its alternatives.100 No action in situations like the
proposed NorthMet mine and land exchange could mean either that the mine would not be
permitted or implemented, or that the land exchange would not occur.101 Both must be assessed.
Importantly, when the choice of no action by the lead agencies would result in predictable actions
by others, this consequence of the no action alternative needs to be considered and included as part
of the no action analysis in the FEIS.102 Although the NorthMet FEIS purports to do this, it does
not provide adequate information about the environmental conditions that would be expected under
the No Action Alternative. This violates 40 C.F.R. 1502.14(b), which requires the FEIS to Devote
substantial treatment to each alternative considered in detail including the proposed action so that
reviewers may evaluate their comparative merits. The FEIS does not contain sufficient detail on the
predicted water quality at the Plant Site and in the Embarrass River watershed under the No Action
Alternative to allow an evaluation of the comparative merits of the Proposed Action.
In fact, the FEIS completely fails to provide any information on the expected water quality at the
Plant Site and in the Embarrass River watershed under the No Action Alternative. Instead, the
predicted water quality under the Proposed Action is exhaustively compared to a modeled
99
MDNR, Nonferrous Metallic Mineral Mineland Reclamation Rules Statement of Need 22 (2008)
(attached as exhibit 5a).
100
40 C.F.R. 1502.14(d).
101
CEQ, Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act
Regulations, 46 Fed. Reg. 18,026 (Mar. 23,1981) (attached as exhibit 4a).
102
Id.; Oceana v. Bureau of Ocean Energy Mgmt., 37 F. Supp. 3d 147, 171 (D.D.C. 2014).
24
Continuation of Existing Conditions (CEC) scenario, which ignores the existing responsible party
(Cliffs Erie)s legal obligation to clean up and manage the site consistent with state and federal
environmental laws. In addition to the violation of 40 C.F.R. 1502.14(b), this violates the
requirement that the FEIS provide a hard look at the impacts of the Proposed Action. By
repeatedly comparing the polluting effect of the Proposed Action with an already polluted situation
that is presumed to continue (but which in reality would not and could not continue under existing
law), the FEIS presents an inaccurate assessment of the impacts of the Proposed Action.
Furthermore, the Existing Conditions that were modeled by PolyMet and disclosed in the FEIS
do not actually reflect currently existing conditions, because Cliffs Erie has already taken steps to
address water quality issues at the site as required by a consent decree with MPCA. Cliffs Erie and
MPCA entered into a judicially enforceable consent decree in March 2010, with Cliffs Erie agreeing
to take corrective actions to resolve all alleged violations of its NPDES permits at these
locations.103 Pursuant to the consent decree, Cliffs Erie was required to submit Short-Term
Mitigation Evaluation Plans for each of the three locations.104 Cliffs Erie was also required to
submit detailed Field Studies Plan Outlines for each location.105 And, Long-Term Plans were
required to identify mitigation strategies to address elevated concentrations of sulfates and other
parameters of concern at each location.106 Each of these corrective actions were required to be
approved by MPCA, and would then become an integral and enforceable part of the consent
decree.107 If Cliffs Erie fails to comply with the consent decree, it is required to pay monetary
penalties to MPCA.108
In addition to failing to adequately address and disclose the corrective actions that have already been
taken by Cliffs Erie at the LTV sites in its analysis and disclosure of existing conditions, the FEIS
also fails to assess the additional corrective measures that will continue to be undertaken by Cliffs
Erie in the event the no action alternative is chosen. The very purpose of the consent decree is to
bring Cliffs Erie into compliance with the NPDES permit requirements at the LTV tailings basin
and mine site, along with the Dunka Pit. Cliffs Erie coming into compliance with the Clean Water
Act is not only predictable and reasonably foreseeable, but also legally required under both the
consent decree and the Clean Water Act. Thus comparing in the FEIS the proposed action with a
no action alternative where pollution would continue indefinitely at the plant site is both inaccurate
and unlawful under NEPA.
The FEIS also fails to describe the foreseeable impacts of the no action alternative at the mine site.
According to the Draft Record Of Decision (DROD), the reason the Forest Service is conducting
the land exchange is that if it does not, PolyMet is likely to litigate its right to build an open pit mine
on Forest Service property, and the outcome of that suit is uncertain. In other words, the Forest
103
Complaint and Consent Decree, Minn. Pollution Control Agency v. Cliffs Eerie, L.L.C. at 15
104
Id. at 30.
105
Id. at 31.
106
Id. at 33.
107
Id.
108
Id. at 37.
25
Service believes that there is a significant chance that the no action alternative would result in an
open pit mine on Forest Service land. Although we agree that this outcome is not certain, if it is
foreseeable enough that the Forest Service is trading away a ten-square-mile contiguous piece of
property with irreplaceable resources in order to avoid it, it is surely certain enough to assess in the
FEIS. Indeed, the Forest Services actions to avoid this scenario prove that it is effectively foreseen.
The Forest Service has the established right to impose conditions on mining operations to protect
natural resources in situations like this one, where the Forest Service owns the surface and a private
party owns the mineral estate.109 Because the mine as proposed would violate so many of the
provisions of the Superior National Forest Land and Resource Management Plan (Forest Plan), the
Forest Service would undoubtedly impose many additional requirements if the mine were to be built
on Forest Service land. The Forest Service cannot assume for the purposes of NEPA that an open
pit mine on Forest Service land would have the same impacts as an open pit mine on non-Forest
Service land.110
We understand that the Forest Service does not want this mine on its property, and we can hardly
blame it. We also understand that the Forest Service sees an advantage in obtaining other land in
exchange. But neither we nor the Forest Service know that this is the environmentally preferable outcome, and the
FEIS does nothing to enlighten us. The whole point to the NEPA process is to look at the actual
expected environmental effects of the range of alternatives in a given situation. In this particular
situation, it is unclear that there will be any on-the-ground environmental benefit of Forest Service
ownership of the nonfederal lands, as opposed to the current owner. Will water quality, vegetation,
wildlife, or ecosystem services benefit from the change of ownership? We do not see much evidence
of that, despite an FEIS that goes into this alternative at length. On the other hand, would these
natural resources benefit from Forest Service ownership of the mine site, if a mine will be built
regardless? The FEIS tells us absolutely nothing about this possibility.
The Forest Service is hiding behind its legal position when it says that if there is no land exchange,
there will be no mine. But the Forest Service cannot have it both ways. If an open pit mine on the
Superior National Forest is foreseeable enough to drive this entire action, it is foreseeable enough to
require assessment under NEPA.
7.0
The FEIS fails to provide adequate analysis of the effectiveness of mitigation

measures, and the impacts of reasonably foreseeable accidents and failures.
Where the FEIS relies on mitigation measures as its reason for not disclosing impacts should those
mitigation measures fail, it must include a discussion of the efficacy and certainty of the mitigation
measures. That discussion must include whether the measures are proven or theoretical and the
degree to which they have worked as planned at other facilities. The agencies must also assess the
probability of accidents, and make a holistic assessment of accident risk for all mining features.
109
110
Duncan Energy v. U.S. Forest Service, 50 F.3d 584 (8th Cir. 1995).
Center for Biological Diversity v. U.S. Dept. of Interior, 623 F.3d 633, 64243 (9th Cir. 2010).
26
PolyMet relies on a number of engineered systems to minimize impacts on the environment from
the proposed mine. This is no different than what is done for every modern industrial mine around
the world; indeed it is legally required in virtually any jurisdiction. Each mine plan is designed to
address the particular difficulties of the site, the ore body, and the mining and processing methods.
The FEIS presents the NorthMet mine plan as though it identifies the perfect engineered systems
that will result in a mine with no accidents, no failures, and no errors in the systems as designed,
installed, or maintained. Mining companies throughout history have laid out plans to minimize
environmental impacts. And yet significant environmental impacts often occur, as demonstrated in
recent global mining catastrophes highlighted in the media. Given the size of the proposed mine and
its location in one of the wettest parts of the United States, concern for accidents, failures, and
unforeseen design, installation, and maintenance errors should be heightened rather than dismissed.
NEPA requires that to the extent that errors, accidents, and failures are reasonably foreseeable over
the expected life of the project (i.e., more than five hundred years), the potential impacts must be
disclosed in the FEIS. The FEIS completely fails to meet this requirement.
This shortcoming affects virtually every aspect of the mine plan and the FEIS. It was raised generally
and in relation to several specific mine features in our comments on the SDEIS at MCEA 3, 56, 22,
4054; Friends 18, 3237, 3940; CBD 3345, 5759; VNPA 5; and in a letter from supplemental
letter on the Mt. Polley tailings basin disaster in British Columbia. All of these materials along with
exhibits cited therein are incorporated herein.
The legal requirement begins with the most elementary aspect of NEPA review: an EIS must
disclose all reasonably foreseeable significant impacts of a proposed project.111 Both the CEQ and
the courts recognize that this involves some conjecture; in many situations, whether or not a
particular impact will occur cannot be known with any certainty at the time an EIS is prepared. But
this does not allow an agency to ignore the possibility of impacts. In the face of uncertainty, an
agency must provide a scientifically defensible assessment of the likelihood of the impacts
occurrence, and a discussion of the potential effects commensurate with the likelihood and severity
of those effects.112
In a situation where errors, accidents, and failures could result in significant impacts, [t]hat
circumstance obliges the agency to undertake risk assessment: an estimate of both the consequences
that might occur and the probability of their occurrence.113 While NEPA does not require
consideration of risks that are merely speculative or infinitesimal,114 it also does not allow an
agency to ignore risks based on unsupported assumptions that errors, accidents, and failures will not
occur.
111
40 C.F.R. 1502.16, 1508.8(b).

See 40 C.F.R. 1502.22.
113
City of New York v. U.S. Dept of Transp., 715 F.2d 732, 746 (9th Cir. 1983).
114
Alaska Wilderness League v. Kempthorne, 548 F.3d 815, 832-33 (9th Cir. 2008).
112
27
To use waste storage facilities as an example, the FEIS Response to Comments Theme GT 15 115
acknowledges that: If incorrectly designed, constructed or managed, or from other unforeseen
circumstances, waste material storage facilities would have the potential to result in increased
hydrologic and/or water quality effects and could potentially lead to slope or dam failure. Pursuant
to NEPA, this acknowledged fact necessitates a risk assessment addressing an estimate of both the
consequences that might occur and the probability of their occurrence.116 In the NorthMet FEIS,
however hypothetical failure scenarios are not assessed, apparently because the Co-Lead Agencies
believe that design and safety requirements, including adaptive management procedures will work
perfectly for hundreds of years.117
Theme WR 129 makes the statement: With appropriate monitoring and pre-planned contingency
actions, and adequate financial assurance, it is technically feasible to maintain the operation of
engineered systems indefinitely into the future.118 Unfortunately, technical feasibility has never been
enough to prevent accidents and failures. And history is replete with engineered systems that
theoretically should have worked perfectly, but nonetheless eventually revealed that the engineers
who designed them or the workers who built and maintained them were not themselves infallible,
not to mention myriad external forces beyond human control. Mining history in Minnesota is
enough to show that the NorthMet mine is not likely to operate for centuries or even decades
without significant mishaps.119
Human Error
It is often noted that while the safety and reliability of engineered systems in-and-of-themselves
continues to improve over time, the propensity for human error does not. Across numerous
industries, the percentage of errors caused by human error is estimated at about 80 percent. Thus
despite the technological advances that have been made in aviation, maritime shipping, medicine, IT,
and many other industries, accident and failure rates decrease far more slowly than would be
expected given improvements in technology.120
In a study of operation events that represented some sort of operations failure at nuclear power
plants, the U.S. Nuclear Regulatory Commission made the following observations:
115
FEIS App. A
City of New York, 715 F.2d at 746.
117
FEIS App. A
118
Id.
119
See Cliffs Erie to MPCA, Re: February 16, 2015 Release from Hoyt Lakes Tailings Basin surface
seepage collection system (March 5, 2015) (attached as Exhibit 7n); Steve Morse to Governor Mark
Dayton, Letter (Aug. 15, 2015) (attached as Exhibit 7o).
120
See, e.g., Scott Shappell et al., Fed. Aviation Admin., Human Error and Commercial Aviation
Accidents (July 2006)) (attached as exhibit 7a); Clifford B. Baker & Ah Kuan Seah, Am. Bureau of
Shipping, Maritime Accidents and Human Performance 225 (Am. Bureau of Shipping, 2004)
(attached as exhibit 7b).
116
28
1. Human error contributed significantly to risk in nearly all events analyzed. Forty-one
percent of events involved partial or complete loss of either onsite or offsite power, 22
percent involved loss of Emergency Core Cooling Systems (ECCS) and 19 percent
involved loss of feedwater. . . . The average human error contribution to the change in
risk was 62 percent.
2. Latent errors were present in every event analyzed and were more predominant than
active errors by a ratio of 4 to 1. Latent errors were noted in all facets of performance
studied, including operations, design and design change work practices, maintenance
practices and maintenance work controls, procedures and procedure development,
corrective action program, and management supervision. . . .
3. Without exception, the operating events analyzed included multiple contributing factors.
On the average, the thirty-seven events contained four or more human errors in
combination with hardware failures. Fifty percent of events contained five or more
errors. Many events contained between six and eight human errors.
4. Human errors can result in the failure or increased likelihood of failure of risk-significant
equipment. For a sample of ten events with the highest event importance, human error
was determined to contribute to component failure. There were three events where a
single human error contributed to a single PRA [Probabilistic Risk Assessment] basic
event, and seven events where multiple human errors contributed to multiple PRA basic
events. . . .
5. Design and design change work practice errors were present in 81 percent of events,
maintenance practices and maintenance work control errors were present in 76 percent
of events, and operations errors were present in 54 percent of events. Additionally, more
maintenance and operations errors mapped to basic events in the PRA model than did
design and design change errors.
6. Forty-one percent of the analyzed events demonstrated evidence of failure to monitor,
observe, or otherwise respond to negative trends, industry notices, or design problems.
This suggests that inadequacies in licensee corrective action programs may play an
important role in influencing operating events.121
These findings are mirrored in the recommendations of the Independent Expert Engineering
Investigation and Review Panel on the Mt. Polley Tailings Storage Facility Breach in British
Columbia. While the focus of the report was on dam design and construction and the underlying
geology, the Independent Panel turned its attention squarely toward human error in its
recommendations:
121
U.S. Nuclear Reg. Comm., Review of Findings for Human Performance Contribution to Risk in
Operating Events xi (2002) (attached as exhibit 7c).
29
Tailings dams are complex systems that have evolved over the years. They are also
unforgiving systems, in terms of the number of things that have to go right. Their reliability
is contingent on consistently flawless execution in planning, in subsurface investigation, in
analysis and design, in construction quality, in operational diligence, in monitoring, in
regulatory actions, and in risk management at every level. All of these activities are subject to
human error.
Human error is often, if not always, found to play a key role in technological failures. And
human error will always be with us, as much as we might wish it to be otherwise. This is why
failures invariably bring about improvements in technology that help compensate for human
error. In perhaps the most notorious containment failure, double-hulled tankers were
mandated after the Exxon Valdez oil spill. Similarly, improvements to rail tank cars are being
adopted in the wake of the Lac-Mgantic tragedy. But tailings dams have no such
redundancies. Without exception, dam breaches produce tailings releases. This is why best
practices can only go so far in improving the safety of tailings technology that has not
fundamentally changed in the past hundred years.
Improving technology to ensure against failures requires eliminating water both on and in
the tailings: water on the surface, and water contained in the interparticle voids. Only this
can provide the kind of failsafe redundancy that prevents releases no matter what. In terms
of portfolio risk, Appendix I shows that this works by reducing the inventory of active
tailings dams subject to failure in the first place. Simply put, dam failures are reduced by
reducing the number of dams that can fail.122
The Independent Panel recommends that all future tailings storage facilities be in the form of dry
stack tailings because failures due to human error cannot be completely guarded against, and dry
stack tailings facilities cannot fail. To repeat the words of the Co-Lead Agencies: If incorrectly
designed, constructed or managed, or from other unforeseen circumstances, waste material storage
facilities would have the potential to result in increased hydrologic and/or water quality effects and
could potentially lead to slope or dam failure.123 Recognizing that this potential always exists at
conventional dams due to the stubborn problem of human error, the Panel recommended a method
that will not lead to hydrologic or water quality effects regardless of human error.
It should be obvious from this discussion that as long as engineered systems are dependent on
human design, operation, and maintenance, theoretically perfect engineering will not eliminate the
risk of accidents, failures, and releases of pollutants to the environment. The risk of human error is
always foreseeable. While it is true that the likelihood of a given failure event and the degree of
impact it would have are unknown, this does not foreclose a qualitative discussion of the risk.
Furthermore, statistical analyses exist for many mine features that allow for a quantitative
assessment; some of these are discussed below.
122
123
Ex. 5c at 120 (Mt. Polley report).

FEIS App. A. Theme GT 15.
30
Modern industry has developed many methods of assessing risks from engineering and materials
failures, natural catastrophic events, and human error. These methods are used routinely by
responsible safety and financial managers in many industries, including mining. These methods draw
from past experience to quantify the risk of accidents and failures at industrial facilities, including
those caused by human error.124
A good example of the assessment and disclosure of risks based on statistics drawn from past
experience is provided by the U.S. EPAs assessment of the potential impacts of the proposed
Pebble Mine in Alaska.125 The Co-Lead Agencies dismiss this report, saying it does not address a
specific mining proposal, and is therefore not applicable.126 But historical experience at mining sites
in general can and should inform the statistical risk of accidents at a particular mine site. While the
FEIS may point out situations where it has mitigated risk as compared to other sites, it is not
appropriate to evaluate risk in a vacuum. Indeed, there are some cases where statistical risk at a
generic mine appears indistinguishable from statistical risks at the PolyMet site. For instance, there is
no reason why PolyMets pipelines are less likely to break or cause spills than pipelines at other
locations. And while PolyMets wastewater treatment strategy may be unique to the pollutants at the
site, there is no reason why their technology is less likely to break down. In fact, as observed by Dr.
Miller, it may be more likely to break down due to its complexity.127 Similarly, PolyMets tailings dam
seems just as vulnerable to breach as tailings dams at other locations, if not more so.128
Effectiveness of mitigation measures

In addition to the potential for errors, accidents, and failures, an important factor in assessing the
risk of unexpected consequences is the uncertainty of mitigation measures designed to prevent those
consequences. To use the tailings basin seepage containment system as an example, a risk
assessment must account for the extent to which the actual performance of the system in the field
remains an unknown. As discussed below, the record contains no examples of similar systems
achieving the level of capture assumed by the FEIS. While the design may work perfectly on paper,
conditions and events in the real world rarely conform to theoretical designs. Established mitigation
measures have a history that can be used to estimate the uncertainty and risk that outcomes will not
match the theoretical or modeled expectations. The fact that success rates for a mitigation measure
are not available does not provide a reason to assume that it will work perfectly. To the contrary, it
124
See Australian Govt Dept. of Res., Energy, and Tourism, Leading Practice Sustainable
Development Program for the Mining Industry, Risk Assessment and Management (2008) (attached
as exhibit 7d); P.E. Brown, et al., Evaluation of the Hydrogeological Risk in the Siting of Mining
Operations, IMWA Proceedings 1988 (2012) (attached as exhibit 7e); U.S. Nuclear Regulatory
Comm., Fact Sheet on Probabilistic Risk Assessment (Oct. 2007) (attached as exhibit 7f); N. Pavan
Kumar, Risk Analysis by Using Failure Mode and Effects Analysis for Safe Mining, Intl Journal
of Science and Research 3:2512 (Nov. 2014) (attached as exhibit 7g).
125
U.S. EPA, An Assessment of Potential Mining Impacts on Salmon Ecosystems of Bristol Bay,
Alaska (Jan. 2014) (attached as exhibit 7h).
126
FEIS A-367.
127
Miller 2014, attached to MCEA SDEIS comments.
128
Chambers and Levit 2015 (attached expert report).
31
increases the uncertainty that the measure will perform as designed. The FEIS must disclose and
discuss the unknowns of the systems and mitigation measures proposed for this project, and what
that uncertainty means in terms of risks to the environment.
NEPA requires that an EIS include a discussion of means to mitigate adverse environmental
impacts.129 The NorthMet FEIS is replete with mitigation measures; however it does not address
the uncertainty of their effectiveness or the risk that they will not operate as intended. Rather, it
assumes that all mitigation measures work perfectly, for hundreds of years if not forever. This is not
the approach to mitigation measures required by NEPA:
[NEPA] does require that an EIS discuss mitigation measures, with sufficient detail to
ensure that environmental consequences have been fairly evaluated. Methow Valley, 490 U.S.
at 352, 109 S.Ct. 1835. An essential component of a reasonably complete mitigation
discussion is an assessment of whether the proposed mitigation measures can be effective.
Compare Neighbors of Cuddy Mountain v. U.S. Forest Service, 137 F.3d 1372, 1381 (9th Cir.1998)
(disapproving an EIS that lacked such an assessment) with Okanogan Highlands Alliance v.
Williams, 236 F.3d 468, 477 (9th Cir.2000) (upholding an EIS where [e]ach mitigating
process was evaluated separately and given an effectiveness rating). The Supreme Court has
required a mitigation discussion precisely for the purpose of evaluating whether anticipated
environmental impacts can be avoided. Methow Valley, 490 U.S. at 35152, 109 S.Ct.
1835(citing 42 U.S.C. 4332(C)(ii)). A mitigation discussion without at least some evaluation of
effectiveness is useless in making that determination.130
Furthermore, the evaluation of effectiveness must be supported by substantive evidence:
[T]he Court holds that the Corps reliance on mitigation measures that were unsupported by
any evidence in the record cannot be given deference under NEPA. The Court remands to
the Corps for further findings on cumulative impacts, impacts to ranchlands, and the efficacy of
mitigation measures.131
Several examples are provided below for which the FEIS fails to provide information about the
uncertainty of the effectiveness of particular engineered systems or mitigation measures.
Adaptive Management
Rather than preparing a risk assessment to account for uncertainty and potential errors, accidents,
and failures, the FEIS repeatedly invokes the phrase adaptive management. Whatever might go
wrong with the project, all will be corrected by adaptive management. This approach also runs afoul
of NEPA, because it postpones the disclosure of environmental impacts until after a project has
129
40 C.F.R. 1502.16(h).
South Fork Band Council v. Dept. of Interior, 588 F.3d 718, 727 (9th Cir. 2009) (emphasis added).
131
Wyoming Outdoor Council v. U.S. Army Corps of Engrs, 351 F. Supp. 2d 1232, 1238 (D. Wyo. 2005)
(emphasis added).
130
32
been undertaken. Most of the promises of adaptive management in the FEIS amount to nothing
more than the promise to make changes after problems occur.
While of course a company must make changes if problems occur, this cannot substitute for
revealing the potential for problems before the project is permitted. As the U.S. Court of Appeals
for the Ninth Circuit puts it, The agency cannot increase the risk of harm to the environment and
then perform its studies. . . . This approach has the process exactly backwards.132 In adopting 40
C.F.R. 1502.22(b), which addresses how to proceed in the face of uncertainty, the CEQ stated:
It must be remembered that the basic thrust of an agencys responsibilities under NEPA is
to predict the environmental effects of proposed action before the action is taken and make
those effects known. Reasonable forecasting and speculation is thus implicit in NEPA, and
we must reject any attempt by agencies to shirk their responsibilities under NEPA by
labeling any and all discussion of future environmental effects as crystal ball inquiry.133
Furthermore, adaptive management plans are themselves subject to the same risks and uncertainty
that pertain to engineered systems as initially planned. The FEIS mentions a number of possible
fixes for problems that may arise, but once again fails to discuss the uncertainty as to whether they
will actually be effective. The FEIS simply assumes that all problems can be fixed. As the U.S.
District Court for the Western District of Wisconsin put it in addressing unplanned, unpredicted
water quality violations at the Flambeau Mine in Wisconsin, the mining company could not be
expected to end its discharges, because to do so would require it to stop the rain.134 If the history
of mining and hazardous waste sites has taught us anything, it is the unfortunate reality that not all
unforeseen results can be fixed to the point of meeting environmental standards.
Although the FEIS relies on promises of adaptive management to evade an assessment of risks to
natural resources, it does not provide adequate adaptive management plans to cover most of these
risks. These statements amount to little more than promises to fix any problems that occur. The
FEIS provides no basis for the assumption that impacts can and will be limited to the impacts
discussed in the FEIS.
The FEIS reference documents include several adaptive management plans for different systems,
which are reviewed in attached comments from the Center for Science in Public Participation
(CSP2).135 As CSP2 points out:
PolyMets proposed use of Adaptive Management is problematic because most of its
applications do not include important features of adaptive management. Most of the
proposed Adaptive Management Plans are in fact more akin to normal project management
132
National Parks & Conservation Assn v. Babbitt, 241 F.3d 722, 733 (9th Cir. 2001) (internal citations
omitted).
133
51 Fed. Reg. 15,618 (1986).
134
Wisc. Res. Prot. Council v. Flambeau Mining Co., No. 11-cv-45-bbc, Opinion and Order 35 (July 24,
2012) (attached as exhibit 7m).
135
Chambers 2015 at 14-19 (Attached as expert report).
33
where project activities and plans are modified as necessary and appropriate based on
changed conditions, failed activities, leaks, improvements in available technologies, etc.
There are essentially two categories of Adaptive Management measures discussed in the FEIS. The
first are systems that are designed with some flexibility involved and with some planning of the steps
to be taken if certain contingencies occur. The FEIS refers to these systems as adaptive, while
other systems are referred to as fixed.136 The adaptive systems are the Waste Water Treatment
Plant and Facility, the Category I Stockpile cover, the HRF cover, and the Tailings Basin pond liner.
All other systems are considered fixed, including the containment and collection systems and the
HRF liner. The FEIS does not provide true adaptive management plans for any of the fixed systems,
and no arrangement is planned to ensure that they can be paid for if needed. In regards to these
systems, CSP2 notes: It is not sufficient to just monitor activities and commit to possibly
implementing from a list of contingencies when a problem is discovered. This is not adaptive
management - it is the mine operator responding to a problem without clear commitment to
meaningful adaptive process or outcome.
The FEIS includes a section entitled Contingency Mitigation starting on page 5-239. These are
measures that are not initially included in financial assurance, and hence it is completely unclear
how they will be paid for, particularly if the condition does not arise or is not discovered until after
the mine closes and PolyMet no longer has a source of revenue. The list of potential problems
includes:
-
Overflow of process water sumps or ponds;

Water quality problems in streams due to rail transport;
Groundwater quality noncompliance due to liner issues;
West Pit water not as expected;
Greater inflow to pits than expected;
New surface seepage locations below the Tailings Basin;
Tailings Basin water not as expected;
Water quality downstream from Tailings Basin not as expected;
Northward flow of pit water.
For each of these potential problems, the FEIS suggests mitigation measures that could be used to
address the problems if they arise. These suggestions do not come close to constituting an adaptive
management plan, and this particular section of the FEIS does not refer to them as such. But
throughout the FEIS and especially in the Response to Comments, these suggestions are elevated to
the status of adaptive management, making it appear that PolyMet and the Co-lead Agencies have
a plan to address problems that arise, when that is simply not true.
In general, wherever a question is raised regarding the certainty of the mine plan and the engineered
systems ability to meet regulatory requirements and otherwise protect the environment, the
response is that no assessment is needed, because adaptive management will be used to fix the
136
See FEIS at 3-55 to 3-57 (Figures 3.2-12 and -13).

34
problem. For example, Comment Theme GT 15 states, The SDEIS does not properly address the
potential environmental consequences of a geotechnical failure due to unplanned and catastrophic
events (e.g. extreme weather events, equipment failure, human error) at the Tailings Basin,
Hydrometallurgical Residue facility, stockpiles, or pit. The response is, Because the risk of failure
is mitigated through application of design and safety requirements, including adaptive management
procedures, the potential effects of hypothetical failure scenarios are not assessed in the FEIS.137
But there is no adaptive management plan that addresses problems that arise due to extreme weather
events, equipment failure, and human error. Waving the flag of adaptive management does not
make these risks go away.
As another example, Theme AQ 05 asks about sulfates and toxic metals . . . that are not captured
for treatment. The response: The NorthMet Project Proposed Action is designed to capture
sulfates and metals with engineering controls and adaptive management.138 But there is no adaptive
management plan (and no money will be set aside) to address solutes that leach to groundwater.
Although the list cited above does mention some potential ways that the problem could be
addressed, the FEIS does not even pretend to review the efficacy of those methods and how they
would be paid for.
Regardless of whether the suggestions for possible fixes described for the problems listed above
are referred to as adaptive management or as contingency mitigation, they do not obviate the
need to provide disclosure of the risk of the problem occurring, and the potential impacts if the
problem does occur. The FEIS and reference documents provide absolutely no support for the
assumptions that these measures will work at this site and that money will be available to pay for
them. This violates the NEPA requirement that mitigation measures be described in sufficient detail
to determine whether the risks to the environment can in fact be avoided.139
One of the FEIS sections that relies most heavily on adaptive management without an adaptive
management plan is the section on indirect impacts to wetlands. According to the Executive
Summary,
In the event that the required wetland monitoring identifies additional indirect effects,
permit conditions would likely include a plan for adaptive management practices to be
implemented, such as expanded monitoring and hydrologic controls. Additionally,
compensatory mitigation would be required if indirect impacts were identified during annual
reporting. Permit conditions would likely include an adaptive management plan to account
for any additional impacts that may be identified in the annual monitoring and reporting.140
137
FEIS App. A.
Id.
139
South Fork Band Council v. Dept. of Interior, 588 F.3d 718, 727 (9th Cir. 2009).
140
FEIS ES-38.
138
35
The words adaptive management practices . . . such as expanded monitoring and hydrologic
controls come up in several places,141 but just what those hydrologic controls might be is never
revealed.
Similarly, the introduction to the section on indirect impacts to wetlands states, permit conditions
would include an adaptive management plan, summarized below, to account for any additional
effects that may be identified in the annual monitoring and reporting.142 As far as we can tell, there
are no adaptive management practices identified for indirect wetland impacts, nor is there an
adaptive management plan to guide what will be done when monitoring reveals a certain level of
impact. Perhaps the words adaptive management plan, summarized below are a misprint; what is
summarized below in that section of the FEIS is an adaptive monitoring plan.143 Two paragraphs are
provided under the heading Indirect Effects Mitigation.144 This section begins, If it is determined
that indirect wetland effects occurred based on the criteria effects threshold levels, PolyMet would
work with the appropriate agencies to respond, which could require PolyMet to provide
compensatory mitigation for any documented indirect effects. This section discusses only
compensatory mitigation absolutely nothing about adaptive management to maintain hydrology,
water quality standards, or vegetation. In sum, despite appearing to promise that adaptive
management measures would be used to address indirect impacts to wetlands, no such measures are
identified, and it does not appear that this is in fact the plan.
This is particularly problematic for certain indirect impacts such as degradation of water quality,
which cannot be mitigated under Clean Water Act regulations.145 Thus if an EIS predicts violations
of water quality standards, the Section 404 permit must be denied. The Co-lead Agencies have
refused to assess whether the project might result in water quality standard violations in wetlands,
but promise to monitor after the project is permitted. And the outcome if violations are discovered
will apparently be to require compensatory mitigation. This is clearly not sufficient to meet the
requirements of either NEPA or the Clean Water Act.
Issues of cost and perpetual maintenance and operation

Issues related to specific engineered systems are discussed below, including: errors, accidents, and
failures; the uncertainty of mitigation measures; and unfounded promises of adaptive management.
However, two other factors affect uncertainty and risk for all systems at the proposed NorthMet
project: cost and financial assurance; and the length of time that systems will need to operate.
In regard to cost and financial assurance, many problems that could occur would not surface until
after mining ends and the company no longer has a source of revenue. As an example, the tailings
basin leachate containment and collection system will likely need to operate for centuries after
mining has ended. A series of mishaps, errors, and negligence might result in a blocked drain, a
141
See, e.g. FEIS 5-257, 5-361, 5-371, 5-394.

FEIS 5-397.
143
See FEIS 5-406.
144
Id.
145
40 C.F.R. 230.10(b).
142
36
build-up of water, and a significant rupture in the containment wall. Fixing the system would no
doubt be expensive.146
PolyMet will not be required to post financial assurance at the outset to cover this or other
unplanned events, because Minnesota regulations only require financial assurance for predicted
reclamation needs. If things do not go according to prediction to the extent that a permit violation
may result, the DNR may require financial assurance at the time when the potential violation is discovered.147
In this example, because the problem would not occur until after mining has ceased, there would be
no source of financing. Whether it is called mitigation or adaptive management, it is not
effective if there is no way to pay for it.
Furthermore, even before mining ceases, there is no guarantee that the mining company will have
the money for additional financial assurance to cover contingencies as they arise. In fact, a typical
scenario at a mine that becomes a Superfund site is that the mine begins with financial assurance set
aside to cover reclamation costs, just as is planned for PolyMet. A problem occurs, which in this
case could be anything on the list above, or many other possibilities that have not yet been
recognized. Environmental standards are violated, and the regulatory agency seeks money from the
mining company to address it. Often it is precisely this cost that drives the mining company into
bankruptcy.
In regard to the length of time over which systems may need to be maintained and/or operated, a
number of risks become foreseeable that would not be an issue for a project that would be
maintenance-free within a reasonable time following the cessation of mineral extraction. For
example, over a 500-year period the risk of societal change resulting in a disruption in regulatory
oversight or the failure of financial institutions becomes foreseeable, where it would not be
considered foreseeable over a 50-year period.
The Co-Lead Agencies stubbornly refuse to discuss the fact that governments and other institutions
do not last as long as may be necessary to ensure the continued maintenance and/or operation of
systems at the NorthMet site. However, the same issue has been thoroughly vetted in the context of
storage and disposal of nuclear waste, where governments and experts have uniformly reached the
conclusion that long-term storage requiring active maintenance is ultimately not an appropriate
option. Quoting from the International Atomic Energy Agency:
All human made facilities require maintenance to preserve their integrity. It follows that if
the integrity of a structure is essential to protecting the health and safety of people and the
environment, ongoing maintenance will be required to avoid gradual deterioration of the
146
To be clear, we are not arguing that this particular scenario will occur, or that the FEIS must
specifically assess this scenario. What we are arguing is that the FEIS must describe the things that
could go wrong, the approximate chance that something will go wrong with each particular system,
and the range of consequences that could occur.
147
Minn. R. 6132.1200(2) and (3).
37
protection afforded by the facility. Ongoing maintenance requires the continued existence of
authorities and institutions that can ensure that essential maintenance is carried out.
.....
Since adequate protection of humans and the environment will continue only as long as
maintenance is continued on storage facilities, and since some of the radioactive material in
storage will remain hazardous for many thousands of years, maintenance or institutional
control would be required for such periods of time or until permanent disposal is
implemented. A review of world history reveals that turmoil and change usually occur in much shorter
periods of time and therefore that it is unlikely that any societal infrastructure currently in place or envisaged
would last for the time period needed.148
And:
The safety of long term storage requires the maintenance of the industrial, regulatory and
security infrastructure as described in previous sections. Long term safety also requires that
future societies will be in a position to exercise active control over these materials and
maintain effective transfer of responsibility, knowledge and information from generation to
generation. Long term storage is only sustainable if future societies can maintain these
responsibilities.
Active controls cannot be guaranteed in perpetuity because there is no guarantee that the
necessary societal infrastructure can be maintained in perpetuity. Therefore, for the types of
radioactive wastes considered herewastes that remain hazardous for thousands of years
perpetual storage is not considered to be either feasible or acceptable.149
As consistently acknowledged by nuclear regulatory agencies, turmoil and change in human
institutions is foreseeable over the time frames for which maintenance activities may be required at
the NorthMet site. The risks to the environment from such turmoil and change therefore must be
disclosed in the FEIS.
Aside from the issue of the longevity of human institutions, activities stretching over hundreds of
years also present a much greater risk to the environment due simply to probabilities over time. For
example, if the probability of a wastewater treatment plant malfunction and resulting release of
polluted water to the environment is 1 per 50 years and wastewater treatment was planned to
operate for 25 years, there would be a 50 percent probability of such an event during the lifetime of
the project. On the other hand, if wastewater treatment is planned for a 500-year period, 10 such
events could be expected. The probability of a major failure resulting in severe impacts would also
be correspondingly higher.
148
IAEA, The Long-Term Storage of Radioactive Waste: Safety and Sustainability 6 (2003) (attached
as exhibit 7i) (emphasis added).
149
Id. at 12.
38
Such information is absolutely critical to a determination as to whether the benefits of a project are
worth the impacts and risks. If, for example, a tailings basin dam must hold for more than 500 years,
and the probability of a catastrophic breach over that time approaches even 5 percent, one would
hope that the Co-Lead Agencies care enough for future generations not to leave them with that risk.
As one court put it: Any substantial risk that the dam could fail would be intolerable; and, if the
agency were to proceed in the face of that risk, that would constitute an abuse of agency
discretion.150 And from the Independent Panel on the Mt. Polley dam breach:
In risk-based dam safety practice for conventional water dams, some particular level of
tolerable risk is often specified that, in turn, implies some tolerable failure rate. The Panel
does not accept the concept of a tolerable failure rate for tailings dams. To do so, no matter
how small, would institutionalize failure. First Nations will not accept this, the public will not
permit it, government will not allow it, and the mining industry will not survive it.151
Disclosing the statistical probability of failure over the time period that the tailings basin dam will
need to hold (based on past experience, which accounts for human error, rather than on engineering
calculations, which do not) would constitute the hard look required by NEPA. Instead, the CoLead Agencies have avoided learning about the probabilities of accidents and failures over an
extended time frame so that they can pass the risk on to future generations without troubling their
conscience.
The lack of risk assessment is a systemic problem affecting virtually every aspect of the FEIS, and
time does not allow identification of all of the systems and uncertainties involved. The following
discussion identifies only the most obvious issues. Preparation of a new supplemental draft EIS that
provides a comprehensive risk assessment should not be limited to these issues.
7.1
Tailings Basin and Dam
The collapse or major breach of the tailings dam is likely the most devastating impact that could
occur at the PolyMet mine. Recent reports demonstrate that the risk of tailings dam collapse is not
nearly as remote as PolyMet suggests. Two hundred and fourteen tailings dams have had failures or
accidents since 1940.152 Since 1960, serious and very serious tailings dam failures have occurred
with greater frequency.153 Very large releases occur even at relatively small mines, such as the Mt.
Polley mine.154 Moreover, the cost of cleanup for a catastrophic failure averages $543 million.155 This
150
Warm Springs Dam Task Force, 621 F.2d 1017, 102627 (9th Cir. 1980).
Ex. 5c at 119 (Mount Polley Report).
152
Lindsay Newland Bowker & David Chambers, The Risk, Public Liability, and Economics of
Tailings Storage Facility Failures (2015) (attached as exhibit 7j).
153
Id. at 4.
154
Id. at 2.
155
Id.
151
39
dollar value is beyond the capacity of most mining companies to cover. Nor is it required that the
risk of tailings dam collapse be included in the financial assurance package.156
While the cited Bowker and Chambers report is not about any particular mine, the authors note how
critical statistical analysis of tailings dam failures is when evaluating the potential for a collapse at any
given mine:
Having something more like actuarial data to refer to is important in understanding the
potential magnitude of loss from an individual dam or a permitting districts portfolio of
dams and TSFs [Tailings Storage Facilities]. With such low frequency high severity losses we
can never assign risk to an individual TSF based on its design and receiving environment
parameters. Unless it has an identified flaw that puts it at near certain risk of imminent
failure, we cant say whether a given dam will fail. We can only say what the consequence
would be in economic terms if it failed.157
In addition, Dr. Chambers has identified risks unique to the PolyMet Proposed Alternative tailings
basin, including a choice to use the cheapest and least safe form of dam construction, and, most
importantly, the choice to use wet, instead of dry, tailings storage. Dry tailings storage would
eliminate the chance of tailings dam collapse, a benefit that outweighs any downsides due to the
potential catastrophic impact of such a collapse.
7.2
Pipelines
As noted in the Friends of the Boundary Waters comments on the SDEIS and still relevant here, the
FEIS does not describe the pipeline system that will be used to transport untreated and treated water
and tailings.158 A description of the length of pipeline that will be used, the various purposes, the
pipeline construction and the pumping system is a necessary first step in assessing the risk of
pipeline spills.
In a review of fourteen copper mines (representing 89 percent of copper mined in the United
States), the conservation organization Earthworks found that every mine experienced pipeline
spills.159 The number of spills per mine over a 26 year period ranged from 2 to 54.160
The EPAs assessment of potential mining in Bristol Bay includes a good example of a risk
assessment for pipeline spills.161 The assessment used statistics from the oil and gas industry. The
assessment found:
156
Minn. R. 6132.1200 (financial assurance must include funds for reclamation activities and
corrective action...if noncompliance with design and operating criteria in the permit to mine
occurs.)
157
Ex. 7j at 3.
158
Friends 85.
159
Bonnie Gestring, U.S. Copper Porphyry Mines 4 (2012) (attached as exhibit 7k).
160
Id. at 7.
161
Ex. 7h at 11-1 to 11-32.
40
Although the range of published annual failure rates for U.S. oil and gas pipelines spans
more than one order of magnitude (0.000046 to 0.0011 per km-yr) (URS 2000), the range for
pipelines most similar to the assessment pipelines along the transportation corridor is much
narrower. For example, the failure rate is 0.0010 failure/km-yr for pipelines less than 20 cm
in diameter (OGP 2010), 0.0015 failure/km-yr for pipelines in a climate similar to Alaska
(Alberta, Canada) (ERCB 2013), and 0.00062 failure/km-yr for pipelines run by small
operators (those operating total pipeline lengths less than 670 km) (URS 2000). The
geometric mean of these three values yields a failure probability of 0.0010 failure/km-yr.
This overall estimate of annual failure probability, coupled with the 113-km length of each
pipeline as it runs along the transportation corridor within the Kvichak River watershed,
results in an 11% probability of a failure in each of the four pipelines each year. Thus, the
probability of a pipeline failure occurring over the duration of the Pebble 2.0 scenario (i.e.,
approximately 25 years) would be 95% for each pipeline. The expected number of failures in
each pipeline would be about 2.2, 2.8, and 8.6 over the life of the mine in the Pebble 0.25,
2.0, and 6.5 scenarios, respectively. The chance of a large rupture in each of the three
pipelines over the life of the mine would exceed 25%, 30%, and 67% in the Pebble 0.25, 2.0,
and 6.5 scenarios, respectively. In each of the three scenarios, there would be a greater than
99.9% chance that at least one of the three pipelines carrying liquid would fail during the
project lifetime.162
The Co-lead Agencies apparently take the position that because engineered systems have progressed,
the history of accidents and failures in the past has little bearing on the probability of accidents and
failures in the futures. But as the Bristol Bay assessment points out:
It may be argued that engineering can reduce pipeline failures rates below historical levels,
but improved engineering has little effect on the rate of human errors. Many pipeline
failures, such as the cyanide water spill at the Fort Knox mine (Fairbanks, Alaska) that
resulted from a bulldozer ripper blade hitting the pipeline (ADEC 2012), are due to human
errors. Perhaps more important, human error can negate safety systems. For example, on
July 25 and 26, 2010, crude oil spilled into the Kalamazoo River, Michigan, from a pipeline
operated by Enbridge Energy. A series of in-line inspections had showed multiple corrosion
and crack-like anomalies at the river crossing, but no field inspection was performed (Barrett
2012). When the pipeline failed, more than 3 million L (20,000 barrels) of oil spilled over 2
days as operators repeatedly overrode the shut-down system and restarted the line (Barrett
2012). The spill was finally reported by a local gas company employee who happened to
witness the leak. The spill may have been prevented if repairs had been made when defects
were detected, and the release could have been minimized if operators had promptly shut
down the line.163
162
163
Id. at 11-5 to 11-6.

Id. at 11-6.
41
The assessment goes on to identify resources that could be affected by pipeline spills, and the range
of potential consequences.
The risk probabilities calculated for Bristol Bay may not apply to the proposed NorthMet Mine. The
lack of information about pipelines in the NorthMet FEIS makes it impossible to draw comparisons
or to estimate what the degree of risk might be. However, the Earthworks Report and the Bristol
Bay assessment do indicate that the risk of pipeline leaks and ruptures at any mine is not remote or
highly speculative. The FEIS thus must present information about the degree of risk and the
potential consequences.164
7.3
Transportation
In the realm of transportation, risks to natural resources arise both from accidents and from
inherent imperfections in modes of transport. The two most obvious transportation risks that are
inadequately assessed in the FEIS are the risks of accidents and the uncertainty of containing ore
dust and spillage along the transportation corridor.
While the FEIS includes a probabilistic risk assessment for accidents involving diesel fuel and PAX,
the results understate the risk of accidents because of the limitation to these two materials.165
Furthermore, the assumption that all shipments begin in Duluth166 very significantly reduces
predicted transportation impacts. Finally, the risk of accidents in regards to the shipment of waste
and of mineral concentrate has been arbitrarily excluded.167 As the FEIS states that both waste and
mineral concentrate will be shipped from the facility, accidents involving these shipments are
foreseeable and thus must be addressed in the FEIS.
Dust and spilled ore from rail transport has been identified as a risk of the proposed project from
the start and remains an issue in the FEIS.168 As with virtually every other system at the mine, the
FEIS provides an optimistic estimate regarding the amount of spillage without regard for accidents,
less-than-perfect maintenance, or simple uncertainty.169 Rather than discussing the probabilities that
some rail cars at some times will not achieve the predicted 97 percent reduction in spillage, the FEIS
assumes that all will go as planned and recommends monitoring to check for any potential
deteriorations of water quality over time from ore spillage.170 The Conservation Organizations agree
with the Great Lakes Indian Fish and Wildlife Commission (GLIFWC): GLIFWC does not believe
that monitoring of the creeks along the rail line will be effective in preventing or minimizing impacts
164
See San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016, 1029-34 (9th Cir. 2006) (risk of
terrorist attack is not remote or highly speculative, and thus must be considered in EIS).
165
FEIS 5-619 (The odds of a potential release of hazardous materials during a transportation
accident would incrementally increase if the other shipments listed in Table 5.2.13-1 were
included.).
166
FEIS 5-616.
167
See FEIS App. A, Theme PD 37.
168
Chambers 2015 at 18 (attached as expert report).
169
See FEIS 5-164.
170
Id.
42
because once detected in monitoring, the impact will have already occurred. GLIFWC states that
cleanup of ore dust in an aquatic environment is a long and difficult process.171 Furthermore,
monitoring to identify impacts after they occur cannot take the place of disclosure of the risks of
impacts in a NEPA document.172
7.4
Liners and covers
The FEIS and supporting documents do not address the uncertainties of the proposed liner and
cover systems raised by comments on the SDEIS, nor do they present sufficient design specification
to meet legal standards for reactive mine waste. As discussed by the expert report by Michael
Malusis, incorporated with MCEAs comments to the SDEIS, there are numerous identified
questions and concerns raised by the environmental review documents describing proposed liners
and covers. Among these are:
171
172
1.
The Tailings Basins bentonite-amended layers documentation: contains

inconsistencies about the thickness of layers; lacks design criteria for the layers such
as hydraulic conductivity and moisture retention; fails to explain how a 3 percent
bentonite addition could create a proper barrier when mixed with coarse tailings;
lacks information on saturation that is necessary to assess the layers as a barrier to
oxygen; lacks sufficient information on wet-dry/freeze-thaw cycling and root
penetrations effects on the proposed layers; includes no information on field
performance benchmarks for the layers operation; proposes three methods of
creating a subaqueous bentonite seal at the bottom of the tailings pond that are
experimental and have not been proven by case studies, while excluding alternatives
that are proven to work as needed in this project; and incorrectly assumes that
manufacturers reported hydraulic conductivity will translate perfectly to field
hydraulic conductivity.
2.
The Hydrometallurgical Residue Facilitys liner and cover systems documentation:

lacks data on the values of compression and swell index values used in modeling
and/or gives values too low for fine tailings and slimes; incorrectly modeled
LTVSMC tailings as homogeneous without consolidation test results for verification;
lacks discussion of the potential for spreading and separation of GCL panel overlaps;
fails to provide citations for slope stability assumptions and fails to provide for sitespecific tests of the final design proposed; similarly assumes a slope for the cover
that will be insufficient to avoid ponding and erosion; and significantly
underestimates the actual leakage of liners in the field based on best-case
assumptions and does not provide for proper testing of actual leakage potential.
3.
The Category 2/3 and Category 4 Stockpiles liner systems documentation: lacks any
liner design feature that could effectively prevent or deal with punctures; fails to
FEIS 8-24.
National Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 733 (9th Cir. 2001).
43
justify the fact that these liners are projected to allow a higher hydraulic conductivity
than is generally recommended for leach pad liners; and does not commit to rigorous
geomembrane best practices for installation, observation, and testing that are
required to prove efficacy at the high level projected by Polymet.
While comments submitted on the SDEIS went into considerable detail on how to remedy the
mistakes in analysis and research, it appears from the response to comments that no significant
additions were made to the FEIS to correct these many omissions and mistakes. Nor does the FEIS
or Response to Comments address most of Dr. Malusiss suggestions. Failure to respond to his
specific comments violates CEQ NEPA regulations. Final environmental impact statements shall
respond to comments . . . . [and agencies] shall discuss at appropriate points in the final statement
any responsible opposing view which was not adequately discussed in the draft statement. . .173
Moreover, where the FEIS did respond to his points it still fell short of assessing uncertainty and
risk and disclosing the potential environmental consequences.
As discussed above, much of the FEIS is premised on assumptions that whatever the issue or
problem, it will be fixed. This assumption is apparent in the responses to comments on liners and
covers. For example, rather than correcting the identified slope gradient issue and properly
addressing the missing information on how the Category 1 Stockpile cover would be designed to
avoid root and freeze damage, the response merely says that maintenance would continue long-term
to deal with erosion and tree removal.174 Similar responses to comments regarding the stockpiles
covers need for ongoing maintenance are also made without addressing Dr. Malusiss expressed
concerns.175 This assurance does not engage the issue raised by Dr. Malusis, that the cover should be
designed with known properties that prevent erosional damage before it occurs. Vague references to
maintenance are not sufficient analysis of potential impacts under NEPA.
The response goes on to make conclusory statements about how liners will perform as predicted in
the overly optimistic SDEIS.176 Dr. Malusis has given an important critique on how the liners likely
will not perform to expectations that goes well beyond this cursory mention, and has asked for more
information on permeability issues that has not been provided. The Co-lead Agency response is
insufficient under applicable law.
Similar to the failure to address Dr. Malusiss concerns for the Category 1 Stockpile, the response
regarding the Hydrometallurgical Residue Facility also avoids addressing important concerns. Rather
than providing the information requested, the response merely repeated lab research information.177
This response does not address the need for site-specific testing and fails to provide additional
information that is necessary to evaluate potential environmental impacts at this facility.
173
40 C.F.R. 1502.9(b).
FEIS Appendix A, A-376.
175
See A-630.
176
Id. A-376.
177
Id. A- 378A-379.
174
44
Responses also highlight the fact that the FEISs analysis is incomplete. The statement that
Additional geotechnical analysis and design details would be required for permitting, including
more detail on the foundation material characteristics, design details to ensure foundation and liner
integrity, and details on the installation, operation, monitoring, and maintenance of the liners,
covers, and stockpiles178 admits that the FEIS analysis does not cover significant details that will
affect the degree of environmental impact. Without this information, the agencies cannot
confidently say what the environmental impacts of this proposed project will be, therefore this
assessment does not satisfy NEPA.
Regarding the lack of support for the assumption that liners at the hydrometallurgical facility will
actually work as projected, the response to comments merely reiterates the fact that the proponent
intends to use a double liner and a leakage recovery system.179 This response is given despite an
absence of information in the NEPA documents about the liners and their real-world success rate,
or studies showing how they would operate in Northern Minnesota with these specific wastes. Nor
does the response to comments address the concerns raised about the agencies failure to support
the assumption that bentonite will perform as expected, or that freeze-thaw cycles cause erosion and
liner breakage. In response to comments that liner leakage rates used were unrealistic, the response
merely reiterated that the leakage rate was based on literature values and modeling.180 The very point
of the comment was that the leakage rate should be based on more than literature values and
modeling; it should include real-world testing and historic data regarding the efficacy of liners at
other mines to assess the actual potential for leakage.
The response to the comment that liner leakage is often the product of mistakes in installation is
similarly limited to a reiteration that PolyMet plans to use liners, completely failing to respond to the
comment.181 Liner installations involve covering uneven ground for distances as long as a mile or
more with virtually no breaks or gaps. While theoretically of course this could be done perfectly, it
rarely is. This is a good example of a situation where the human factor often intervenes; perfect
installation requires commitment, ability, and patience that are sometimes lacking.
Across all of these responses is a marked unwillingness to address the need for consideration of
both site-specific factors and the performance of the chosen technologies in the field, rather than in
a best-case laboratory setting. Because this fails to recognize foreseeable risks that the liners will not
perform to theoretical predictions, it does not meet NEPA requirements.
The FEIS shows a similar disregard for potential problems with the use of bentonite as a pond and
bench liner at the Tailings Basin. As for other systems, the FEIS and Response to Comments simply
assume that any problem can be fixed, without assessing or discussing the uncertainty of measures
that might be used. Regarding concerns expressed about the untested application of the bentonite
plan, the Response to Comments states: Potential measures that could bring the capture efficiency
178
Id.
Id. A-9, A-593A-594.
180
Id. A-186, A-629.
181
Id. A-637.
179
45
of the system to 100 percent include improvements to the existing dam such as lining the upstream
dam face with bentonite and injecting grout into the dam.182 There is no support given for this
statement; it also does not acknowledge the fact that the proffered fix (another bentonite liner) is the
same technology that commenters questioned in the first place. Bentonite amendment is not a
universal panacea, especially when it is being used in unproven and uncertain ways that could be
negated by the chemistry of the tailings at this site.
Concerning comments like Dr. Malusiss regarding the implausible uses of bentonite proposed in the
preferred alternative, the response states:
[P]ublications indicate that uniform blending is important, so that amendments would
probably be applied in multiple layers, and that site-specific field tests would be required
prior to full-scale application to tailings surfaces or the tailings pond bottom. . . . The
[bentonite amendment] plan would be updated as necessary as part of facility permitting,
with future in-laboratory material testing performed to confirm percentage of bentonite
addition requirements, and with in-field test plots constructed preceding initial cover
construction activities to confirm material placement procedures. The specific methods for
bentonite amendment at the Tailings Basin, including a material testing program and
construction quality control plan would require approval by the facility engineer of record
and PolyMet prior transitioning to full-scale implementation.183
This is a misunderstanding of how a NEPA document is meant to function. To the extent that the
agencies agree that the effectiveness of bentonite amendments and application to the pond bottom
are still untested and unprovenand therefore in need of field and laboratory teststhe
environmental review cannot simply assume that the strategy will be successful. The Co-Lead
Agencies cannot rely on unproven mitigation measures. As water pollution due to seepage is one of
the large risks of this project, it is wholly inappropriate to put off necessary tests until after the FEIS
is finalized, and even more inappropriate to assume that the results of those tests will be favorable.
In his report prepared in response to the FEIS, Dr. Malusis shows that the analysis remains flawed
on key issues. He points out that mixing bentonite into tailings will be less effective than assumed.
Tailings metals will inhibit bentonite swelling as the bentonite hydrates within the mixture, possibly
to the extent that the bentonite will not adequately plug the voids in the mixture. If this is the case,
then the bentonite-amended tailings layer will be a poor water/oxygen barrier. The current
proposals for bentonite additions to dams will not effectively block water or oxygen, and therefore
all of the predictions of water quality impacts that are dependent on this mitigation measure are
incorrect. Dr. Malusis also indicates that important information is still missing from the FEIS. The
inconsistencies regarding, and uncertainty of effectiveness for, bentonite-amended dam raises must
be disclosed in the FEIS, along with disclosure of the potential environmental impacts should the
plan prove less effective than assumed.
182
183
Id. A-197; see also id. A-616, A-625A-626, A-634 (same wording).
Id. A-585.
46
While the DNR regulation (discussed above in the section on the Dry Stack Tailings Alternative)
requiring either that the tailings be rendered nonreactive or that essentially all water be prevented
from moving through the tailings184 is not mentioned in the FEIS, we would like to point out that
the bentonite amendment strategy will not meet this requirement. As Dr. Malusis explains, the
design proposed for the Flotation Tailings Basin does not sufficiently prevent the incursion of water.
Indeed, it is designed to allow a fourth of the annual precipitation to percolate into and through the
basin, and is likely to be even less effective than designed.
Environmental Impact Statements must demonstrate compliance both with NEPA and with other
environmental laws.185 The failure of the proposed project to meet regulatory requirements in this
case is a good illustration of the wisdom of this NEPA requirement. No FEIS should be deemed
adequate when it envisions an illegal outcome as a preferred alternative.
7.5
Leachate barrier and collection systems
The FEIS and supporting documents do not address the uncertainties of the proposed leachate
barrier and collection systems at the Category 1 Stockpile and the Tailings Basin. These systems are
assumed to collect more than 90 percent of the leachate from these mine features, and this
collection rate is critical to all of the predictions of water quality impacts from this project. If these
systems do not operate as assumed, the increases in pollutants in surface and groundwater at both
the mine and plant site will be significantly higher than predicted in the FEIS, to the point of
violating or increasing violations of water quality standards for some constituents. For systems
modeled at 99 or 100 percent capture efficiency, a change of even one percent could double the
amount of pollutants predicted to enter ground and surface water.
In response to questions about the adequacy of the capture systems, the FEIS contains new
information showing modeling of the operation of the capture systems.186 Dr. Tom Myers has
provided a comprehensive review of this modeling.187 As Dr. Myers concluded regarding the
Tailings Basin system,
The FEIS statement [m]odel results indicate that all seepage from the Tailings Basin would
be captured along the north and northwest flowpaths under all assumptions of the bedrock
fracture zone thickness is true only because the model was set up in a highly biased fashion.
The model was set up to confirm: These results indicate that the Plan site Goldsim model
assumption (that groundwater seepage equal to 10 percent of the aquifers transmissive
capacity bypasses the Tailings Basin containment system) is conservative. The model was
hardwired to show what the modelers were told by Polymet to make it show. The evidence
for this is that the model parameters do not resemble the parameters used for other
184
Minn. R. 6132.2200(2)(B).
40 C.F.R. 1502.2(d).
186
Barr 2015b.
187
Tom Myers, Technical Memorandum: Review of the Final Environmental Impact Statement 3031, 37-41 (2015) (Attached as expert report) [hereinafter Myers 2015].
185
47
modeling and the boundaries were set to create hydraulic barriers and sinks that will not be
present in the field.188
In his review of the SDEIS, Dr. Michael Malusis also identified numerous questions and concerns
regarding the barriers. For the Category I Waste Rock Stockpile, FEIS documentation: lacks
information on soil content and a potential additional barrier in the wall; indicates an incorrect liner
will be used for a vertical wall; is based in part on missing information (i.e. broken links in reference
materials and missing documents referenced) and insufficient explanation; presumes an unrealistic
permeable conductivity rate for the vertical barriers; lacks information on keying walls to bedrock; is
not clear about wall thickness; and indicates an insufficient surface slope which will lead to ponding
and infiltration. The Tailing Basins groundwater seepage containment systems documentation
similarly lacks information on wall keying and inward gradient, and indicates a wall thickness that
will be too difficult to construct and backfill properly and is not consistent with conventional
practice. It appears from the response to comments that no significant additions were made to the
FEIS to correct these many omissions and mistakes.
As discussed above, reliance on a mitigation measure to avoid disclosing possible impacts of a
project requires sufficient evidence for the assumption that the mitigation measure will work as
planned, and/or a disclosure of the degree of risk that it will not work as planned along with
information about the potential impacts if it does not. Instead of providing this assessment, the
FEIS and Response to Comments tell us that the barrier and capture system is both a wellestablished technology, and a new technology for which historic information about the efficacy of
such systems is irrelevant.
In hailing the groundbreaking uniqueness of the capture systems, the Response to Comments states:
The Co-lead Agencies acknowledge that there are existing water containment systems at
other mine sites that do not operate with a high degree of capture, but these are different
designs and cannot be directly compared to the system proposed for the NorthMet Project
Proposed Action. The proposed containment system uses pumping on the tailings side and
reinjection on the downgradient side to reverse hydraulic gradients across the slurry wall and
in underlying bedrock. Relatively few containment systems have been built with this degree
of pumping and reinjection to ensure effective capture. The conceptual hydraulics of this
type of system provides evidence that it would achieve complete or nearly complete
capture.189
In other words, the Co-lead Agencies are not relying on evidence that this technology has worked at
this level of capture before. The only evidence it has for its assumption of greater than 90 percent
capture (and in some places, 100 percent capture) is conceptual hydraulics.
However, the FEIS disingenuously states in another place that
188
189
Id. at 41.
FEIS Appendix A, A-193
48
The proposed containment system technology is not new nor unique; the slurry cutoff wall
and collection trench approach has been used for many decades, beginning initially as a
means to facilitate construction of deep foundations in locations of shallow groundwater and
difficult soil conditions, and subsequently expanding to other uses such as the containment
of contaminated groundwater emanating from unlined waste disposal facilities (e.g., landfills,
stockpiles, etc.). There are many papers written about the use of groundwater containment
systems and a number of contractors well-experienced and proficient in containment system
construction.190
The comment that this text responds to specifically challenges the assumption that the capture
efficiency will be greater than 90 percent.191 Thus the response that the proposed technology is not
new or unique and there are many papers written about it refers to a unique technology for
which the agencies have no evidence other than conceptual hydraulics.
Notably, no citations are provided for the alleged papers.
Similarly, in response to comments that the chosen control technologies have never been proven in
this type of mining, the agencies cite to a 1986 USACE manual in support of the statement: Design
criteria for the Tailings Basin are based on well-established geotechnical design standards with
significant precedent in Minnesota, in the greater United States, and worldwide.192 In short, the
agencies tout significant precedent for use of slurry wall technology when commenters point out
the complete lack of information on the practical, as-built efficacy of the reverse hydraulic gradient
system. And when commenters point out the ineffectiveness of slurry wall technology as shown by
significant precedent, the agencies tout the uniqueness of the hydraulic system. In neither situation
is the comment actually responded to.
Despite this attempt to confuse the issue, it is clear that the Co-lead Agencies have no documented
examples of situations in which this type of system has worked at the level of accuracy that the FEIS
assumes. Given that these walls will be miles long and that the systems will need to continue
operating for hundreds of years, assumptions that they will operate perfectly defy belief. Our expert
reports provide many reasons to doubt these assumptions.
In light of the lack of precedent and the resulting uncertainty in the capture rate of these systems,
one would think that the amount of leachate escaping from the Category I Stockpile and the Tailings
Basin would be set as variable factors in the GoldSim modeling, allowing a picture of what might
happen if the systems are less effective than assumed. Given the relative ease and simplicity of this
means of assessing the outcome of a less-than-perfect performance of the containment system, there
is simply is no excuse to ignore significant risks of water contamination, as the FEIS currently does.
190
Id. A-198; see also id. at A-196 (same wording).

Id. at A-197.
192
Id. A-438.
191
49
7.6
Hydrometallurgical Residue Facility
The Hydrometallurgical Residue Facility (HRF) is the only disposal area proposed on the site with a
double liner. The materials contained within the HRF may be among the most dangerous on the
site. The SDEIS was dismissive of the possibility that the HRF would leak;193 the FEIS doesnt
mention it at all.
Yet the underlying documents demonstrate that the materials in the HRF will undergo an initial
rapid flush of acidity and metals, and will remain acidic over time.194 As noted by Dr. Chambers
and Dr. Malusis in both comments submitted herewith and previous comments, substantial
concerns remain regarding stability and potential impacts of the HRF. Even a small leak would have
a significant impact that must be assessed.
7.7
Waste Water Treatment
As with other systems, the FEIS fails to discuss any potential difficulties and breakdowns that the
Waste Water Treatment Plant and Facility might face, despite the assumption that they will have to
operate for centuries. Rather than discussing the uncertainties of scaling up to large facilities from
the pilot scale testing and the inherent uncertainties of adjustments needed to meet discharge limits
for all constituents, the FEIS simply assumes that an answer will be found for any unexpected
results. Rather than responding to questions about the uncertain efficacy of meeting the applicable
standards at the necessary scale, the Response to Comments focuses on the ability to increase
capacity, and to continue treating and/or storing water during any breakdowns. But these responses
do not address uncertainty relating to the systems ability to meet the discharge limits in the first
place. Although reverse osmosis (RO) may be standard technology that has been operated around
the world for decades,195 the FEIS and supporting documents provide no examples of it meeting
the discharge limits that will apply here, at the scale it will need to operate. And please note that we
are not saying that it cannot be done; we are saying that there is uncertainty involved and no
resolution of the issue. The FEIS must reveal that uncertainty along with the range of impacts on
water quality that might result if it does not work as well in reality as it did in a small pilot test.196
Regardless of the technology involved or the size of the plant, wastewater treatment facilities are not
immune from accidents and failures, and most modes of failure involve human error.197 For
example, it may be the case that in RO systems membrane failure tends to be gradual and provide
advanced warning,198 but acting on that warning requires human reliability. The best way to
193
The SDEIS states, it is assumed that the leakage from this facility into underlying groundwater
or adjacent surface water would be negligible and this potential effect is not discussed further.
SDEIS 5-157.
194
PolyMet 2012e (NorthMet Project Residue Management Plan) at 5.
195
FEIS App. A, Theme WR 143.
196
Miller 2014 (Attachment to MCEA SDEIS comments).
197
Great Britain Health and Safety Executive Hazardous Installations Directorate, Causes of Plant
Failure (May 1, 2002) (attached as exhibit 7l).
198
50
estimate the potential for accidents, failures, and releases due to human error is not to examine the
technology but to refer to history.
The greatest failure of the FEIS in regard to risk assessment of the water treatment systems is its
failure to disclose what it will mean for water quality (and the humans and wildlife that depend on it)
if waste water treatment ends prematurely due to a disruption in regulatory or financial institutions.
As discussed above, given the timeframes involved this is not a remote or highly speculative
possibility, and thus must be discussed in the FEIS.199 The public deserves to know the quality of
water that will be released if treatment ends prematurely, and decision makers need this information
in order to take a hard look at what they are approving.
The EPA assessment of potential mining in Bristol Bay provides an example of disclosure of the
impacts of a treatment plant failure.200 The assessment provides the following description of
difficulties with RO systems:
Studies of wastewater treatment plant (WWTP) efficiency and design considerations show
that reverse osmosis water treatment systems can be compromised by fouling and scaling
from calcium, iron, barium, strontium, silica, microbial growth, and silt (Mortazavi 2008).
The Bingham Canyon WWTP in Utah treats groundwater contaminated with sulfate and
total dissolved solids from copper mining by reverse osmosis. Pilot tests and optimization
studies have shown that the structural integrity of its reverse osmosis membranes can be
damaged by abrasive materials (e.g., silt) or chlorine (ITRC 2010). Changes in water
composition could increase the concentration of chlorine if the mine pit encounters a large
flow of brine transmitted to the pit through deep fracture systems, or from localized areas of
mineralized rock with anomalous water quality. An example of WWTP failure due to highly
variable chemical composition of inflow wastewater has been documented at a copper mine
in Chile: when silica concentrations exceeded the design range, the whole reverse osmosis
system could not be operated and was therefore shut down until feed water quality improved
(Shao et al. 2009).201
Once again, although it may be true that these difficulties can be dealt with if maintenance,
replacement, and repairs are performed as needed, it is exactly the failure of maintenance,
replacement, and repairs that leads to accidents and unintended releases.
The EPA assessment concludes:
Although it is highly likely that mine operations would adversely affect water quality at the
mine site, several factors make it difficult to predict the level of effects and consequent risks
to fish.
199
San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016, 1029-34 (9th Cir. 2006).
Ex.7h at 8-15 to 8-57. In particular, see Table 8-18 at 8-39.
201
Id. at 8-17.
200
51
One component of this uncertainty is associated with the likelihood of water collection and
treatment failure. Water collection and treatment failures have been documented at 13 of 14
porphyry copper mines in the United States (Earthworks 2012). These 13 cases represent
instances in which engineering uncertainties led to prediction failures, despite the fact that
mine permits included mitigation measures intended to prevent such occurrences. These
results indicate that failures are not uncommon at modern U.S. copper mines; however, they
cannot be used to quantitatively predict the likelihood of water collection and treatment
failures in this or future assessments.
Even in the absence of failures, predicting the effects of mining on water quality is difficult
and results are uncertain. Further, the effects of water quality changes on aquatic
communities are uncertain. The following factors contribute to these uncertainties:
-
The range of potential failures is wide and the probability of occurrence for any of
them cannot be estimated from available data. Therefore, we can only state that,
based on the record of the mining industry, treatment failures of some sort are likely
to occur.202
As stated by Dr. Miller, RO systems are notoriously difficult. This is an extremely complex system,
and the likelihood that it will encounter problems is at least as likely as at the 13 locations studied in
the Earthworks report.
7.8
East Pit Water Pumping, Treatment and Return
The plan to pump and treat water from the East Pit as it is filling is a mitigation measure designed to
help meet groundwater standards. This strategy is unproven and receives only limited attention in
the FEIS and its reference documents. The FEIS fails to respond substantively to SDEIS comments
asking for further explanation and details. It also fails to provide any discussion of the uncertainty
involved or the risk of unplanned difficulties.
The strategy is to rinse the rock in the backfilled East Pit, with the goal of flushing out
constituents to improve water quality in the pit. The plan calls for pumping water out of the
backfilled East Pit at a rate of 1750 gallons per minute (gpm), treating the water and returning it to
the pit. However, the record does not appear to include any evaluation of the uncertainties of
pumping water at this high rate from the backfilled pit, or whether the rock in the pit is certain to
remain saturated while pumping at that rate.203
The FEIS fails to assess the risk that pumping at the rates described could desaturate the contents of
the East Pit, thereby exposing the most reactive rock (Category 2, 3 and 4) to oxygen that may result
in the generation of pollution that subaqueous disposal is intended to limit. It appears that PolyMet
proposes to add water back in at the same rate that it pumps water out, and therefore operates on
202
203
Id. at 8-54 to 8-55.

See Myers 2015 (attached expert report) at 28.
52
the assumption that the rock will remain saturated. But water that is added back into a backfilled pit
will follow preferential flowpaths, which may leave some areas unsaturated.204
The NorthMet Project Water Modeling Data Package notes that: After Mine Year 31 the WWTF
can accept more water from the East Pit due to decreasing flows from other sources, and the
quantity extracted from the East Pit is allowed in the model to increase.205 But the FEIS does not
evaluate the uncertainty and the potential risks of increasing pumping beyond the already high 1,750
gpm rate.
Nor does the FEIS provide examples of mines where the rinsing of a pit was successfully achieved
in the manner in which PolyMet proposes. The FEIS lacks the description and analysis of this
proposed method necessary to assess its mitigation potential or to ensure the method itself does not
cause significant environmental harm.
The Response to Comments on this issue provides only unsubstantiated assurance:
FEIS Section 5.2.2.3.1 accurately describes how East Pit backfill would be flooded as it is
emplaced during operations to maintain water within 5ft of the backfill surface using effluent
from the WWTF and storm water runoff. The Co-lead Agencies review of the model found
that the footprints and depths of East/Central Pit are correctly incorporated into the threedimensional model mesh, and that appropriate boundary conditions are used to simulate pit
inflows. During reclamation (year 21 40), water from the East Pit would also be pumped
to the WWTF and treated . . . after which treatment of water in the East Pit may continue
into closure and long-term maintenance.206
However, Section 5.2.2.3.1 provides only general statements of what is proposed and does not
describe the three-dimensional model mesh or other details of the method, much less a response
to concerns that discharge back into the pit would follow preferential flowpaths and leave areas of
reactive rock unsaturated.
Rather than providing data, analysis, or examples to support the certainty that the plan will operate
as intended, the FEIS Response to Comments simply restates the belief that all areas of the pit will
remain saturated: The Co-lead Agencies believe that the existing plans, as described in the FEIS,
are sufficient to ensure that the East Pit backfill would remain saturated perpetually beyond
closure.207 This reliance on a mitigation measure, whose efficacy is not supported by the record, and
the failure to discuss the risks and uncertainties of the method, violate NEPA requirements.208
204
Id.
PolyMet 2015 at 173.
206
FEIS Appendix A at A-658 (Section 2.1.1 of PolyMet 2015d, as cited in the FEIS).
207
FEIS Appendix A at A-662 to A-663.
208
See Wyoming Outdoor Council v. U.S. Army Corps of Engrs, 351 F. Supp. 2d 1232, 1238 (D. Wyo.
2005).
205
53
7.9
Categorization of waste rock
The FEIS assumes that waste rock will be perfectly categorized into the Category 1, 2/3, and 3/4
Stockpiles, which is wholly unrealistic. The FEIS must account for inevitable errors in categorizing
waste rock, and disclose the potential impacts on water quality from reasonably foreseeable mistakes.
This issue was raised in our comments on the SDEIS at MCEA 5, 74; Friends 23. Our SDEIS
comments are attached to this objection letter, and the referenced pages along with all cited
materials are incorporated herein.
7.10
Water quality information
Based on the above assumptions, lack of assessment of risk of failures, accidents, and other
problems, and lack of assessment of the efficacy of mitigation measures and adaptive management,
the EIS fails to provide the hard look at risks to water quality that is required by NEPA. These
issues were raised in our comments on the SDEIS and include water quality of various waste
streams and leachate (Friends 5-6; CBD 36-39), constituency of waste sludge and solids (Friends 5),
location of disposal of waste sludge and solids (Friends 5), and water quality in the West Pit lake, the
East Pit porewater, and the Tailings Basin (CBD 20-21, 71-72). This information is readily available,
and needs to be disclosed in the FEIS to provide an understanding of the predicted quality of water
that would be released to the environment if any of the engineered systems do not operate as
expected. Our SDEIS comments are attached to this objection letter, and the referenced pages along
with all cited materials are incorporated herein.
7.11
Emergency Response Plans
The EIS fails to provide an emergency response plan, and subsequently fails to provide a realistic
assessment of the likely effectiveness of response measures for preventing environmental impacts.
This issue was raised in our comments on the SDEIS at Friends 39-40. Our SDEIS comments are
attached to this objection letter, and the referenced pages along with all cited materials are
incorporated herein. Although the Response to Comments makes note of these concerns, it does
not actually respond to the issues raised, in violation of 40 C.F.R 1503.4(a) (agency must consider
and respond to comments) and 40 C.F.R. 1502.9 (b) (agency must discuss in FEIS any
responsible opposing view, and shall indicate the agencys response to the issues raised).
7.12
Reclamation Plan
The EIS fails to provide a detailed Reclamation Plan that demonstrates that project closure can be
accomplished using demonstrated reclamation techniques at a cost that is affordable. This issue was
raised in our comments on the SDEIS at Friends 37-38. Our SDEIS comments are attached to this
54
8.0
The EIS is based on a flawed water model that does not consider all potential
impacts of the project.
The Final EISs MODFLOW and GoldSim models contain a series of flaws and unrealistically
optimistic assumptions that ultimately result in a model that is not useful to predict conditions at the
site, particularly the mine site.209 Indeed, in many cases, the model has inputs that have biased it
towards a particular outcome. For instance,
The simulation estimated recharge that is far too low for the area because it improperly
used the 30-day low flow as baseflow, thereby ignoring that baseflow occurs at higher
rates even during storm events. Calibration with a very low recharge caused a very low
conductivity estimate.
The modeling set a vertical conductivity several orders of magnitude less than the
horizontal. This limits the flow from the surface layer into the bedrock layer.
The plant site model assumed that bedrock had such low conductivity that it was
modeled as a no flow boundary, but the cross-section model of seepage containment set
the bedrock conductivity high so that groundwater flow through bedrock would curve
upward and be captured by the drain.
Storage parameters based on textbook values are too high. Specific yield for
unconsolidated and bedrock units was set to 0.25 and 0.05, respectively. The specific
storage is 3x10-6 ft-1 for each formation which means that a very small amount of water
removed from a confined aquifer will cause a foot of drawdown. This causes an
underestimate of dewatering by an order of magnitude, meaning that a predicted
dewatering rate of 500 gpm could actually be 5000 gpm.
The mine site model simulates the Peter Mitchell Pit as a constant head tens of feet
higher than water levels at PolyMet when PMP water levels actually vary and in future
will be as much as 300 feet below PolyMet and will be at least 75 feet lower in perpetuity.
Adding the PMP to the Myers modeling shows that its long-term dewatering and pit lake
development will substantially affect groundwater flow patterns at the proposed Polymet
project. It will create pathways at depth from the Central and East Pits north to the
PMP and contaminants could reach the PMP in less than 100 years.
PolyMets MODFLOW modeling ignored the backfill added to the pits and the pit lake
in the West Pit in their simulation. The backfill properties would control the amount of
water required to fill the pit, but the model did not adjust the properties from those of
bedrock to emulate backfill during the pit refilling. As the water levels recover into a
backfilled pit, the uppermost part of the backfill would be an unconfined aquifer and the
209
This issue was raised in comments on the SDEIS at MCEA 3, 56-65, 70, 75; Friends 4-5, 10-16,
38-39; CBD 3-6, 40-41, 46-49.
55
backfill will would require five times as much water to saturate as would bedrock. The
West Pit would be a large open volume but the modeling did not change properties to
reflect that fact. A lake would require twenty times the amount of water as compared to
bedrock with specific yield equal to 0.05.
These errors or bad assumptions when applied to Goldsim would cause many potential errors or
biases in the model results.
The water model also ignores nitrate and ammonia concentrates, and underestimates sulfate
concentrations. It predicted sulfate water quality that is chemically impossible because it is not
charge-balanced.210
The Conservation Organizations recognized the fundamental flaws with PolyMets water modeling
early in the process. Viewing it as insufficient merely to suggest changes to PolyMets model, we
commissioned Dr. Myers to generate his own water model to demonstrate what a more accurate
model without PolyMets flawed assumptions would look like. That model is described in Dr. Myers
comments on the SDEIS in 2014, which were attached to MCEAs comments.
The Co-lead Agencies response was to defend PolyMets model, rather than incorporating Dr.
Myers work into the FEIS. This is unfortunate, because including the results of an additional model
would give a better understanding of the range of possible impacts of mining. To quote extensive
from the Myers report:
[T]here are reasons for the agencies to consider multiple model estimates for a given project
one reason is that it vastly improves the robustness of the predictions. There is really no
right or wrong when it comes to a conceptual model for a hydrologic system. However,
there is considerable value in utilizing the results of multiple models for the same study area
to make predictions. No two hydrologists would develop the exact same conceptual model
for the same area. Each conceptual model, and the numerical model based on it, can be
considered a sampling or an estimate of the conditions of the area, just as more than one
water sample may be taken of a river. For example, Ye et al (2010) developed 25 different
conceptual and numerical models for a study area near Yucca Mountain in Nevada. The
twenty five stemmed from five different geologic interpretations and five different recharge
estimates. There is no way to determine which model is best in advance, so Ye et al
developed statistical means of combining the estimates. That is beyond the scope of these
comments, but it suggests some means of averaging the predictions would be appropriate.
Similarly, Seifert et al. (2012) considered six conceptual geologic models for the same study
area using the exact same calibration data and found that neither was substantially better
from a calibration statistic basic. Each simulated the same head and flow data. In predictive
mode, they yielded substantially different predicted responses to changes in groundwater
abstraction. Hence, we conclude that the critical assumption that is always made in model
210
Maest 2015 (Attached as expert report).

56
averaging, namely that the model weights derived from the calibration or validation situation
are also optimal for model predictions, cannot be assumed to be generally valid (Seifert et
al. 2012, p 15). This points to the value in having multiple predictions for a study area.
. . . . . Both Myers and Barr used water balance approaches to estimate recharge, approaches
which may also have fairly high uncertainties because errors in all terms accumulate in the
recharge rates (Scanlon et al. 2001, p 34). Barrs baseflow estimate is subject to several
errors not present in Myers estimate.
There is the assumption that baseflow is constant and equal to the 30-day low flow;
by extension, this assumes there is no increase in groundwater discharge to the river
even during storm periods when recharge is ongoing.
Barr uses effectively a 30-day time steps whereas Myers uses daily time steps by
adding daily baseflow estimates over the whole study period.
The estimates of dewatering discharge from the PMP are source of error. Myers
determination of baseflow treated flow from PMP could be identified as surface
runoff.
Rather than rejecting an alternative prediction, the FEIS could include some of the estimates
from the Myers model as a bounding estimate. There is precedence in NEPA studies for
doing this. The DEIS for the Rosemont Mine in Arizona included the results from three
groundwater models to provide a range. The conceptual models differed substantially but
the results actually formed a decent bounded estimate of dewatering impacts and the extent
of drawdown away from the mine. The FEIS presented and contrasted the results among
models, showing that each model predicted more extensive impacts in some areas than did
the other two.211
In response to comments, the Co-Lead Agencies asked Barr Engineering to prepare, among other
documents, a Memorandum on the four containment systems, and a sensitivity analysis of various
inputs into the water model. The Memorandum on the containment systems begins thusly:
The Co-Lead Agencies have requested a summary of the four containment systems that are
planned for the NorthMet Project (Mine Site and Flotation Tailings Basin [FTB]) and the
justification for how they are represented in the water quality (GoldSim) modeling. This
memorandum represents the rationale for the modeling assumptions for each of the
following containment systems:
211
FTB Seepage Containment System (north and west)

FTB Seepage Containment System (east)
FTB South Seepage Management System
Myers 2015 (attached as expert report).

57
Category 1 Waste Rock Stockpile Groundwater Containment System212
The Co-Lead Agencies requested a justification for how the containment systems are represented
not a response to substantive questions raised by public comment. Notice also that the Co-Lead
Agencies did not request this justification from their own staff or consultants, but from the
project proponents consultant. According to the project proponents consultant, capturing 100% of
the surface water discharge and 90% of the groundwater discharge is a conservative assumption.213
In a second memo prepared by Barr entitled Sensitivity Analysis of the NorthMet Water Quality
Models, Barr stated that although it would describe its sensitivity analysis to see if various changes
to the model would change the outputs,
Because of the proposed engineering controls and the adaptive water management strategy,
it is not expected that the modeled concentrations in the Partridge River would exhibit much
sensitivity to most input variables for the Mine Site water quality modeling, except those
inputs that control water quantity and quality from unimpacted portions of the watersheds.
If this expectation is borne out in the sensitivity analysis, the results will be positive with
respect to the potential for environmental impacts: this will indicate that as long as the
engineering controls perform as planned and the adaptive water management strategy is able
to achieve its objectives, there is little likelihood that a mischaracterized input variable would
result in unforeseen environmental outcomes.214
In other words, PolyMets consultant would do the work, but the outcome was preordained by the
assumptions in the model. This demonstrates that the Co-Lead Agencies have not taken a hard
look at the water quality impacts of the PolyMet proposal.
9.0
Modeling must be re-done to reflect the actual hydrology of the mine site to provide
an accurate assessment of impacts.
Since the close of the comment period for the SDEIS, new information has come to light regarding
the potential for groundwater to flow north out of the East and West pits after closure, toward and
into Northshore Minings Peter Mitchell Pit. The Peter Mitchell Pit will be dewatered for many years
following the closure of the proposed NorthMet mine. Even after the Peter Mitchell Pit is closed
and fills with water, that water will be maintained at a lower elevation than the water in the
NorthMet West Pit Lake and East Pit pore water, causing a northward migration of groundwater.
This water will enter the Peter Mitchell Pit, from which all water will be discharged to the Rainy
River watershed after mine closure, constituting a diversion of water from the Great Lakes basin to
the Hudson Bay basin.
212
Barr 2015e at 1.
Id. at 4-5.
214
Barr 2015d at 2.
213
58
This issue was brought to the Co-lead Agencies attention by the Great Lakes Indian Fish and
Wildlife Commission, whose position and modeling results are contained in a letter attached to these
comments.215 Dr. Tom Myers has done additional modeling that also indicates a northward flow
from the mine pits after closure.216
Remarkably, the Co-lead Agencies defend their failure to establish the likely flow paths of
groundwater from the mine pits by stating that the modeling done was not intended for this
purpose. The agencies as much as admit that they did not plan to require PolyMet to accurately
characterize the hydrology of the site after closure, when to do so is required to obtain a water
appropriation permit.217 The DNR will no doubt respond that this is a permitting rather than a
MEPA requirement, but when exactly is it that the required hydrological investigation and modeling
was going to be done? And why wouldnt it be completed so that it could be included in the EIS?
PolyMet and the agencies response to this issue is to promise to find some form of mitigation that
will prevent water from flowing to the north.218 At this point, the promises of mitigation have
reached the point of absurdity. According to the EIS, no matter what happens at this mine, some
means will be found to address it. But it is abundantly clear from all evidence and all sources that
this is not the way things work in the real world. If it was, we would not have billions of dollars of
contaminated mine sites spread across the country that are not being remediated because the money
is not available. The FEIS provides four pages of mitigation ideas without one word about cost.
GLIFWC reviewed an early version of proposed mitigation measures and responded,
Given the uncertainty that the co-leads feel there is in characterization of contaminant
flowpath direction, the draft co-lead memo of June 22 proposes several mitigations that
attempt to prevent northward flow of contaminants. The feasibility of any of those measures
has not been evaluated. Even with the minimal information presented in the memo, several
obstacles to successful mitigation of a northward flowpath are evident: 1) The thickness of
the low conductivity surficial deposits between the PolyMet site and the P-M pits,
approximately 50 feet thick according to Minnesota Geological Survey 2005 publication
M158, makes the practicality of an infiltration trench questionable; 2) Lowering of water
levels in the the PolyMet pits would expose reactive Virginia Formation rock to air and
water, creating acid generation and dewatering surrounding wetlands; 3) Groundwater
injection or extraction wells may be a feasible, but costly, mechanism to block northward
flow but, as noted in the memo, would require perpetual operation, care and replacement.
215
Letter from John Coleman, Great Lakes Indian Fish and Wildlife Commission Environmental
Section Leader, to Co-lead Agencies Re: Comments on PolyMet mine site contaminant northward
flowpath and groundwater model calibration (Aug. 11, 2015) (attached, with supporting materials, as
exhibit 9a).
216
Myers 2015 (Attached expert report).
217
Minn. R. 6115.0720(1)(E) (water appropriations permits for mining require submission of details
of the hydrologic and hydraulic impacts and effects of the operation on the watershed(s) including
changes in basins, watercourses, and groundwater systems.)
218
FEIS 5-240 to 5-244.
59
In addition to the proposed adaptive management appearing to be impractical, substituting

adaptive management for understanding of the hydrologic system is contrary to the
NEPA concept of site characterization and impact prediction. NEPA is a forward-looking
process with the goal of anticipating and describing impacts so that measures can be taken to
avoid or minimize those impacts. A northward flowpath for contaminants is indicated by
both MODFLOW and MathCad. The character of the hydrology between the PolyMet and
P-M projects needs to be described correctly so that impacts of that northward flowpath can
be evaluated and the feasibility of mitigation measures can be determined.219
In an Expert Report submitted with these comments, Dr. Tom Myers reviews the suggested
mitigation possibilities, and points out,
All of these measures would have to be maintained indefinitely because the northward flow
gradient would last forever (Myers 2015). The FEIS has failed to prove that any of them
could effectively work or that Polymet could afford to implement them. The FEIS should
not rely on these mitigation strategies but rather should complete analysis to lower the
uncertainty as to whether they will be needed by completing better upfront analyses of the
potential for northward flow.
The FEIS discussion states that proposed mitigation measures if needed, would be maintained
indefinitely or until acceptable bedrock groundwater flow conditions are obtained without those
measures.220 This begs the question: how exactly is it that acceptable bedrock groundwater flow
conditions might be obtained, no matter how far in the future? The only possibility that comes to
mind is a change in what is considered acceptable, which is no doubt what PolyMet is banking on.
Our observation is that once a mine or a mineral processing plant is built in Minnesota, no branch
of state government will require the company to do anything that it says it cannot afford. A case in
point is Mesabi Nugget, which promised to build a water treatment system to address discharge
problems within five years of startup. The plant was permitted and began operating, but when it
came time to build the water treatment system, the company couldnt afford it, and ten years later
continues to operate with a variance. Another is Reserve Mining, which promised on obtaining its
permit to discharge tailings into Lake Superior that if the tailings did not settle on the lake bottom as
expected, it would take whatever action might be necessary to remedy those conditions.221 The
length and complexity of the legal proceedings to force it to do so are legendary.
The willingness of the Co-lead Agencies to accept PolyMets promises at face value, without
assessing their practicality or the likelihood that they would be effective, abrogates the agencies
responsibilities to the public. Financial assurance is given as the answer to all questions. But
Minnesota regulations require financial assurance only for planned remediation. The mitigation
219
Ex. 9a Letter at 7-8.

FEIS 5-243.
221
Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 814 (Minn. 1977).
220
60
measures proposed to address potential northward flow would not be initially included in the
financial assurance package, but, if required in the future, these measures would be added to the
financial assurance package.222 But even if the need for the measures was established before mining
ended, neither we nor the Co-lead Agencies have any reason to believe that PolyMet would be able
to afford the financial assurance when the need is discovered. At that point, the mine will be
operating, and even the Great Lakes Compact is unlikely to require mitigation that the company says
it will close rather than pay for.
Furthermore, it is possible or even likely that any northward flow will not be discovered until after
PolyMet has ceased operations. Once the mine is no longer producing ore, obtaining any additional
financial assurance will be impossible because PolyMet will not have a source of revenue.
PolyMet has to promise to keep its pit water from flowing toward the Rainy River, because
according to the terms of the Great Lakes Compact, it could not be permitted otherwise.223 The
Great Lakes Compact prohibits diversions of water out of the Great Lakes basin for anything other
than public water supply.224 There is no minimum volume on this prohibition; another section of the
Compact indicates that volumes as low as 5.7 gallons are included.225 The Co-lead Agencies need to
take a realistic look at the proposed mitigation measures, PolyMets financial situation, and the very
foreseeable risk that a diversion of Great Lakes water will result from permitting this mine.
10.0
The geochemistry work relied upon by the FEIS uses unsupportable assumptions
and inadequate data.
Similarly, the geochemistry work is insufficient to support realistic, defensible predictions of water
quality impacts. The water quality predictions in the EIS are based on insufficient data and
unsupported assumptions. The combination of the uncertainty in regard to hydrology and
geochemistry inputs to the model results in an overly-optimistic assessment of water quality impacts.
As with hydrological impacts, the EIS must include the full range of reasonably possible acid
production and metals leaching potential of rock at the site, and the resulting range of reasonably
possible impacts on water quality.226 Specific issues include:
1. Nitrogen and ammonia are ignored in the proposed water treatment schemes. Both
constituents are likely to be present at high volumes because of blasting agents; yet PolyMet
has failed to address them in their water quality predictions and treatment strategy.227
222
FEIS 5-239.
Public Law 110-342, 122 Stat. 3739 (Oct. 3, 2008).
224
Id. at 4.8, 4.9.
225
See id. at 4.12(10) (A Proposal to Withdraw Water and to remove it from the Basin in any
container greater than 5.7 gallons shall be treated under this Compact in the same manner as a
Proposal for a Diversion.)
226
This issue was raised in SDEIS comments at MCEA 5, 70-75; Friends 15, 23-24, 38-39, which are
attached and incorporated herein.
227
Maest 2015 (Attached expert report).
223
61
2. An inadequate number of samples were used to characterize the chemical composition of

waste rock, and almost no acid base accounting (ABA) analyses were done on the samples
that were examined. As a result, the EIS provides insufficient support for its conclusions
regarding the potential for acid mine drainage and for virtually all of its water quality
predictions.
3. The use of concentration caps and averages, the disregard of actual results of HCT and field
tests, and the failure to account for heterogeneity of the rock and seasonal variability result in
an EIS that almost certainly underestimates water quality problems.
4. PolyMet assumes in its analysis that the stratigraphic units within the deposit are very similar,
but does not have adequate support for this assumption.
5. The modeling used a high adsorption factor that prevents contaminants from moving along
flowpaths. Seasonal variability, including spring snowmelt, and other conditions may result
in higher-than-predicted concentrations.228
6. The potential for acidic conditions in the Category 2/3 and 4 waste rock stockpiles to
develop more quickly than predicted.
11.0 The EIS must assess water quality impacts in the Partridge River at the closest point
between the river and mine features.
The EIS must assess water quality impacts from groundwater discharge to the Partridge River at any
point where those impacts may be the greatest, including the point where the river comes closest to
mine features. The EIS cannot omit impacts on the river upstream of SW-004 unless it provides
adequate data showing that those impacts will be less than the impacts at SW-004 and below. This
issue was raised in our comments on the SDEIS at CBD 6-9, which is incorporated herein by
reference. We asked Keith Gadway, principle of Quantum Environmental, Inc. in Ann Arbor,
Michigan, to review the FEIS and our SDEIS comments in regards to this issue. His response is
included as an expert report.
The methodology for assessing water quality impacts included assigning a number in the model to
represent the distance between mine features and the river. This was apparently based on the
average distance to the river within the flowpath.229 As such, the accuracy of the location and width
of the flowpaths becomes important. FEIS Figure 5.2.2-7 shows the flowpaths as estimated for the
GoldSim modeling. Note that point SW-003 is the closest point to the Partridge River from the
Category 2/3 stockpile. However, the East Pit/Category 2/3 Flowpath was deliberately drawn to
begin just below this point, and no assessment was made of the impact of leachate from the
stockpile on surface water quality in this location.
228
229
See id. for additional concerns about adsorption.

See FEIS 5-41, Table 5.2.2-8.
62
The flowpaths shown in Figure 5.2.2-7 and used in the GoldSim model do not accurately reflect the
geography and hydrology at the site. As the Response to Comments admits, the flowpaths do not
exactly line up with the flow trajectories predicted by MODFLOW.230 And even if they did, the
MODFLOW modeling itself was not designed to accurately identify flow paths.231 The FEIS makes
several vague statements such as, A secondary purpose of the MODFLOW model [including
groundwater flow directions and the distribution of groundwater baseflows along the Partridge
River.] An evaluation of these parameters showed that the GoldSim setup/inputs were generally
consistent with the MODFLOW results.232 The FEIS needs to provide sufficient information about
both the MODFLOW assumptions and the consistency between the two models to allow for some
judgment as to the accuracy of the flowpaths. The Co-Lead Agencies seem to begin with the
assumption that there will be no significant impacts along this stretch of the river, thus making the
accuracy of groundwater discharge points unimportant.233
As Mr. Gadway states,
Impacts to the river would presumably be greatest along the primary groundwater recharge
zone closest to mine operations. Based on predicted pathways for discharges to the river
from mine features, monitoring and evaluation points are more than three miles downstream
from this point and are just below the discharge from a creek. Selection of these monitoring
and evaluation points ensures that the discharges likely to be highest in pollutant
concentrations are not caught by monitoring until well downstream, having been diluted by
presumably clean groundwater and by surface water from an area less likely to be affected by
mine operations.
The failure to monitor surface water at the actual point of contact with groundwater and
surface water closest to the mine is directly contrary to Great Lakes Initiative (GLI)
requirements and standards that ensure that water quality will not be lowered for impaired
waters. The FEIS methodology fails to evaluate the receiving water nearest the actual
discharge to the Partridge River, and therefore is inadequate to address potential
impairment.234
For reasons stated in our comments on the SDEIS, we believe that water from the Category 2/3
Stockpile and the East Pit will enter the Partridge River to the west of the mine as well as to the
south. Supplemental modeling from Dr. Myers and scientists at GLIFWC indicates that water will
likely move north as well. The mine site is located in a bend in the river, and the closest distances to
the river for both the Category 2/3 stockpile and the East Pit are in locations that the FEIS omits
from the evaluation. A new modeling effort is needed for this project for other reasons; in the
course of that modeling, the effort should be made to identify what stretches of the actual river (as
230

See, e.g., MDNR et al. 2015c at 2.
232
FEIS 5-29.
233
See FEIS App. A, Theme WR 177.
234
Keith Gadway, Quantum Environmental Inc., to MCEA (Dec. 9, 2015) (Attached expert report).
231
63
opposed to the modeled river) will receive polluted groundwater. The GoldSim model should then
be adjusted to account for the reduced distance from mining features to the river.
12.0
The EIS must disclose the predicted quality of publicly-owned water within the
property boundary, including groundwater.
The EIS must disclose the predicted quality of publicly-owned water within the property boundary,
including groundwater. This issue was discussed in our comments on the SDEIS at CBD 12-15
(surface water) and 20-21 (groundwater), which are incorporated herein.
Allowing a landowner to pollute groundwater to the property boundary and failing to disclose the
level of that pollution in environmental review are both unconscionable in this case. The property
here covers close to 30 square miles,235 or about half the size of the city of Minneapolis. A number
of streams have their headwaters within the property. Both the streams and the groundwater below
the property are public resources, as explained in our comments on the SDEIS.
In regard to groundwater, the Response to Comments asserts without basis that assessing impacts at
the property boundary is typically used in EISs for mining and industrial facilities.236 We are not
sure what is meant by this statement, but after scanning a number of recent mining EISs, we do not
believe that it is true. We did not find a single EIS that provided quantified information on predicted
water quality at the property boundary that did not also provide information for predicted water
quality in pit lakes and backfilled pits. Most of the EISs we surveyed predicted no impacts on
groundwater quality even within the mining area. The two EISs we found that did quantify impacts
to groundwater included information on water quality within or under the mine workings following
reclamation.237
If the Co-Lead Agencies are saying that assessment of groundwater quality impacts at the property
line is standard practice for MDNR and MPCA for projects in Minnesota, we do not believe that
there has ever been another industrial or mining project permitted in the state of Minnesota with
comparable predicted impacts to groundwater. Sulfide mining is unique, and new to Minnesota. The
typical approach is entirely inadequate for this atypical project. And in any event, an approach
does not necessarily meet regulatory requirements just because that is the way it has been done in
the past. Whatever MPCAs practice is in permitting discharges to groundwater, that practice does
not provide a limit on the impacts that must be discussed in an EIS. There is no valid reason for
treating impacts to groundwater any differently than impacts to surface water (including wetlands),
wildlife, and other public resources found within the boundaries of a proposed private industrial site.
235
See FEIS 3-9, Figure 3.2-1.

237
Bureau of Land Mgmt., Final Environmental Impact Statement for Blackfoot Bridge Mine (Mar.
2011) at 4-55 to 4-57 (attached as Exhibit 12a); U.S. Army Corps of Engrs, Charleston District,
Final Environmental Impact Statement for the Haile Gold Mine Project EIS Chapter 4, Section 4.3
at 4.3-32 to 4.3-39 (July 2014) (attached as Exhibit 12b).
236
64
13.0
The FEIS must disclose the uncertainties that make many of the predictions
regarding water quality and quantity suspect.
Many parameters that modeling treats as certain (or determined) in fact are not. Modeling and other
analyses omit reasonably foreseeable values for many parameters, the inclusion of which would
result in much wider range of potential impacts. This issue was raised in our comments on the
SDEIS at MCEA 57, 60, 70, 75; Friends 15, 38-39; CBD 4-6, 40-41. Our SDEIS comments are
incorporated herein.
By failing to account for these uncertainties, the FEIS provides less than a hard look at the range
of impacts that are reasonably foreseeable. In addition to those addressed elsewhere in these
comments, these parameters include those discussed below.
13.1
The volume of water from mine dewatering is uncertain
The FEIS fails to take the hard look required by NEPA when it relies on uncertain predictions
about the amount of water that will need to be managed from mine dewatering. There is a
significant possibility that the FEIS underestimates this volume of water. The FEIS needs to discuss
the reasonably possible range of dewatering water that will need to be managed, and how it will be
managed if the volume is greater than anticipated.
This issue was raised in our comments on the SDEIS at Friends 7. Our SDEIS comments are
not actually respond to the issues mentioned, in violation of 40 C.F.R 1503.4(a) (agency must
consider and respond to comments) and 40 C.F.R. 1502.9 (b) (agency must discuss in FEIS any
13.2
The extent of bedrock fractures is uncertain
The FEIS fails to take a hard look at the impacts that would result if significant bedrock fractures
are present at the site. The FEIS relies on unsupported assumptions about the lack of significant
bedrock fractures, which result in impact predictions that are suspect. It also makes unwarranted
assumptions regarding possible additional fracturing of the bedrock from mine blasting. The
presence of significant fractures would result in the movement of water through the bedrock, with
resulting impacts not assessed in the FEIS. This issue was raised in our comments on the SDEIS at
Friends 11-12, 22, 25-27; CBD 4-5. Our SDEIS comments are attached to this objection letter, and
the referenced pages along with all cited materials are incorporated herein.
13.3
The range of concentrations of constituents in leachate is uncertain
The FEIS fails to adequately and clearly explain the geochemistry of the project, the use of humidity
cell tests, and the calculation of concentration caps. While modeling used a range of inputs for
65
leachate concentrations, those concentrations were limited by assumptions that were not based on
test results. The potential that constituents in leachate will act according to assumptions is uncertain,
and thus the range of concentrations of metals in leachate is uncertain. This issue was raised in our
comments on the SDEIS at MCEA 5, 71-72. Our SDEIS comments are attached to this objection
letter, and the referenced pages along with all cited materials are incorporated herein.
This issue was not addressed in the FEIS Response to Comments, in violation of 40 C.F.R.
1503.4(a) (agency must consider and respond to comments) and 40 C.F.R. 1502.9 (b) (agency must
discuss in FEIS any responsible opposing view, and shall indicate the agencys response to the
issues raised).
14.0
The discussion of passive treatment in the FEIS is misleading and should be

removed.
Passive or non-mechanical treatment is as yet undeveloped, and there is no evidence that it will
ever prove technically capable of treating water at this site to the levels used for the WWTF effluent
in the water quality modeling.
While the EIS does state that the agencies are not relying on passive treatment for water quality
predictions, and that the need for mechanical water treatment is assumed to be indefinite, the
placement of the material on passive treatment has the effect of insinuating that this assumption
probably will not prove true. This insinuation in concert with the failure to say how long
indefinitely might be does not provide a hard look at the need for perpetual treatment.238
The FEIS and supporting documents assume throughout that unproven passive treatment systems
will be implemented. For instance, the Final EIS contains a section describing the predicted
transition from mechanical to non-mechanical treatment:
As described in the Water Management section above, water modeling for the NorthMet
Project Proposed Action and the environmental analysis in Chapter 5 assumes that
mechanical water treatment would continue indefinitely. PolyMet would include funds in its
contingency reclamation estimate and financial assurance package to operate mechanical
water treatment for as long as necessary as a part of its Permit to Mine. However, the Permit
to Mine would also require PolyMet to present a plan for eventual transition from
mechanical water treatment to non-mechanical water treatment, and to adjust its financial
assurance on an annual basis in accordance with Minnesota Rules, part 6132.1200 to conform
to the transition. This section provides an overview of the transitional approach from
mechanical water treatment to the use of non-mechanical treatment technologies.
PolyMet would transition from mechanical to non-mechanical water treatment as soon as
the company demonstrates that non-mechanical water treatment technologies would
effectively treat water to meet water quality based effluent limits and as soon as formal
238
This issue was raised in comments on the SDEIS at Friends 5-8, which is attached and
66
approval is received from the agencies.

Non-mechanical water treatment technologies need to be designed for site-specific
conditions and actual site water quality. PolyMet accordingly would test non-mechanical
water treatment technologies for several years during mine operations and reclamation, until
an acceptable treatment performance could be achieved.
Non-mechanical water treatment technologies can be evaluated in the following steps: 1)
collection of additional local site information (i.e., hydrology and influent water quality), 2)
laboratory testing, 3) pilot-scale testing, 4) design of a system for full-scale implementation,
and 5) continued evaluation of effectiveness over time.
The conceptual design for a non-mechanical treatment system is to treat each flow expected
in the long term. The Adaptive Water Management Plan (PolyMet 2015d) outlines
preliminary/conceptual information on non-mechanical treatment systems.
PolyMet has initiated testing of non-mechanical water treatment technologies on site (in
collaboration with Cliffs Erie) and will continue testing these systems and evaluating other
non-mechanical water treatment technologies until they could be demonstrated to the
satisfaction of the MDNR and MPCA to provide the required water treatment. Provisions
would be included in the NorthMet Project financial assurance package to ensure this test
work and implementation of the non-mechanical water treatment technologies could be
completed.239
The Adaptive Water Management Plan, cited in the FEIS above, treats the transition to nonmechanical treatment as a certainty, with the only question being timing:
The ultimate goal of long-term closure (Figure 2-4 and Figure 2-5) is to transition from the
mechanical treatment provided by the WWTF to non-mechanical treatment. Because nonmechanical treatment designs are very site-specific and very dependent on the quality of the
water to be treated, it is assumed that the WWTF will operate in the long-term and the
transition to non-mechanical treatment will take place only after the performance of a nonmechanical system has been tested on site, proven effective, and approved by the agencies.
The two non-mechanical treatment systems at the Mine Site are independent of each other.
It is expected that the Category 1 Waste Rock Stockpile Non-Mechanical Treatment System
will be deployed earlier than the West Pit Overflow Non-Mechanical Treatment System, as
described in Sections 6.2 and 6.3. As noted previously, water from the Category 1 Waste
Rock Stockpile will continue to be treated by the WWTF until non-mechanical treatment
with gravity discharge to the West Pit has been proven to provide appropriate treatment.
This may occur during reclamation or long-term closure Operation of the WWTF will
occur year-round with the discharge directed to a small watercourse that flows into the
239
FEIS at 3-81.
67
Partridge River until non-mechanical treatment has been proven effective at achieving water
quality objectives.240
PolyMet has used these statements to sow confusion in the public about the length of time for
which water treatment would be required at the site. News reports include:
But because the study focused on the water that could escape rather than water contained
at the site, other factors would have to be considered to give a true estimate of how long
treatment would be needed, said Brad Moore, PolyMet's executive vice president of
environmental and governmental affairs. He said company officials expect mechanical
treatment, such as the reverse osmosis systems PolyMet is proposing for the mine and plant
sites, would only be needed for decades. The effectiveness of passive treatment techniques
such as wetlands is still being studied.241
Moore, a former commissioner of the Minnesota Pollution Control Agency, also disputed
the need for long-term treatment at the mine site. The company estimates mechanical water
treatment will only be needed for about 40 years after the mine is closed. When the mine
opens, Moore said, PolyMet would begin testing passive wetland filtering systems designed
specifically for the site's water chemistry. He said state and federal regulators chose the word
indefinitely in the document to be conservative, since the reverse osmosis technology is
treatment that's already proven.242
One point of debate is the length of time water from the site would need to be treated after
the mine closes. The environmental review includes the scenario in which water treatment
could be needed for up to 200 years at the mine site and 500 years at the processing plant.
But Moore said treatment wont be needed for that long. He said the conservative modeling
used assumes that all elements of the rock will enter the ground water through the
weathering process, although that doesnt happen.243
PolyMet also released its own factsheet about long-term water treatment in which it said that
PolyMet believes that within 30 years after closure, all water will be treated by passive treatment
technologies.244
While the Conservation Organizations recognize that PolyMets statements are not part of the FEIS,
they are supported by statements in the FEIS that have no place in an agency document. An agency
240
PolyMet 2015d (NorthMet Project Adaptive Water Management Plan) 13.

Elizabeth Dunbar & Dan Kraker, PolyMet Environmental Study Inconclusive on Water
Treatment, Fueling Confusion, MPR News (January 27, 2014) (attached as exhibit 14a)
242
Dan Kraker, As DNR report on PolyMet Mine Emerges, Critics Question Safeguards, MPR
News (June 26, 2015) (attached as exhibit 14b).
243
Kirsti Marohn, PolyMet Official in St. Cloud to Seek Support For Mine, St. Cloud Times (Feb.
4, 2014) (attached as exhibit 14c).
244
PolyMet Mining, Long-term Water Treatment Fact Sheet (2014) (attached as Exhibit 14d).
241
68
is obligated to assess the effectiveness of potential mitigation measures.245 In this case, the Co-Lead
Agencies have concluded that the potential mitigation measure is not effective at all because it relies
upon non-existent technology, yet continue to discuss it at multiple points throughout the FEIS,
including the Executive Summary:
The NorthMet Project Proposed Action includes long-term mechanical treatment (RO or
equivalently performing technology) at both the Mine Site and Plant Site with a goal of
transitioning to a non-mechanical water treatment technology requiring less maintenance
over the long term. Pilot studies for non-mechanical treatment would be conducted during
operations (and post-closure as necessary) to demonstrate the ability to transition to nonmechanical water treatment. Both mechanical and non-mechanical treatment would require
periodic maintenance and monitoring activities for as long as treatment is required.246
Also, in response to public comments that treatment would be essentially perpetual, the Co-Lead
Agencies responded:
Minnesota Rules, part 6132.3200, Closure and Postclosure Maintenance, identifies several goals for
non-ferrous mining areas, including the goal that sites be closed so that they are
maintenance-free. A maintenance-free site is the goal of the Minnesota Department of Natural Resources
(MDNR) for the NorthMet Project Proposed Action, as it is for every mining site. The NorthMet Project
Proposed Action includes piloting a non-mechanical treatment system to achieve this goal. PolyMet would
include funds in its reclamation cost estimate and financial assurance package to fund
mechanical water treatment for as long as necessary, but the Permit to Mine would require
PolyMet to present a plan for eventual transition from mechanical water treatment to nonmechanical treatment. PolyMet cannot be released from its responsibilities, including
financial assurance requirements, until there is no longer a need for closure/post-closure
treatment/maintenance. Financial assurance is a component of any Permit to Mine, to
ensure that necessary maintenance can be provided for as long as it necessary.247
Over the course of any project, technology changes and improves, and sometimes projects are
implemented differently than predicted in an EIS where technology that is newer, better or less
costly becomes available. Yet there is no doubt that the original 500-year predictions for water
pollution in the SDEIS quickly became the most controversial aspect of this project.248 The current
FEIS still concedes that mechanical treatment is required for at least 200 years at the Mine Site and
245
42 U.S.C. 4332(c); 40 CFR 1508.25(b), 1502.14(f), 1502.16(h) and 1505.2(c); see also Robertson
v. Methow Valley Citizens Council, 490 U.S. 332, 351-3 (1989).
246
FEIS ES-24.
247
FEIS App. A, A-456, Theme PER 04.
248
See, e.g., Elizabeth Dunbar & Dan Kraker, Water Treatment A Central Question in PolyMets
Environmental Study, MPR News (Dec. 5, 2013) (attached as Exhibit 14e); Josephine Marcotty,
Iron Range Mine Could Pollute Water for Up to 500 years, Star Tribune (Oct. 7, 2013) (attached
as Exhibit 14f); John Myers, PolyMet study: Water from Mine Site Would Need 500 years of
treatment, Duluth News Tribune (Oct. 5, 2013) (attached as Exhibit 14g).
69
500 Years at the Plant Site.249 Thus, it appears that FEIS continually repeats the goal of nonmechanical treatment solely for political reasons to address public concerns about committing to a
mine that requires hundreds of years of water treatment, rather than any justifiable belief that this is
proven mitigation measures.
Furthermore, non-mechanical treatment will not meet the goal of maintenance-free closure. To
repeat the Executive Summary, Both mechanical and non-mechanical treatment would require
periodic maintenance and monitoring activities for as long as treatment is required. FEIS ES-24.
While less intensive or less frequent maintenance might be required for a non-mechanical system, in
some respects this could add to the potential that failures and problems would go undetected. In any
event, representing that non-mechanical treatment would meet the maintenance-free goal of the
regulations is simply false.
In summary, the many statements about transition to non-mechanical treatment mislead the public
and agency decision-makers into believing that non-mechanical treatments exist that will work at this
site, and that they will eliminate concerns over the length of time that treatment will be needed.
Neither of these things are true. These statements should be removed.
15.0
The FEIS does not address pumping water from areas around the pits during
mining, or the potential for elevated concentrations of nitrate and ammonia
The FEIS fails to take a hard look at the possibility that runoff from the area around the pits
could have elevated concentrations of nitrate and ammonia from blasting agents, and that the area
around the pits will need to be dewatered by pumping. The FEIS thus failed to consider the need
for this additional pumping, which would add water to the total to be treated, including the need to
treat process water for ammonium and nitrate.250
Mine water that has been in contact with blasting agents, including leachate from stockpile materials
stored at the mine site and the pit walls, will have elevated concentrations of ammonia and nitrate
from the use of high volumes of blasting agents such as emulsifiers, boosters, and ammonium
nitrate fuel oil (ANFO).251 The treatment pilot tests, however, assumed that mine water would
have near-background levels of nitrate and ammonia, and so the effectiveness of the selected
methods for removal of these constituents under mining conditions has not been tested or
considered.
The FEIS discloses that large amounts of explosives will be needed to create the open pits: 18,650
lb/yr for the booster, 4.65 million lb/yr for the emulsion, and 10.6 million lb/yr for ANFO.252 As
result, nitrate, ammonia, and oil & grease concentrations can be high in primary contaminant
sources at mine sites and downstream. For instance, the significant exceedance of permit limits for
249
FEIS at 5-8.
This issue was raised in SDEIS comments at MCEA 74; Friends 6-8, 14, which are attached and
251
Maest 2015 (Attached expert report).
252
FEIS at 5-621, Table 5.2.13-1.
250
70
nitrate in downgradient groundwater and surface water has been seen at the Buckhorm Mine.253
However, while the FEIS lists that the environmental concern from these hazardous materials
includes harm to water and aquatic life, the FEIS fails to actually consider and address the effects of
blasting on water quality. Indeed the objectives for wastewater treatment at the Mine Site do not
even mention nitrate or ammonia removal.254
The agencies response to comments on this issue is inadequate.255 First, no response was provided
for concerns about ammonia removal. And for treatment of nitrates, the response states that the
WWTF will also be of modular construction, such that additional modules can be added for
increased capacity if necessary. However, because nitrate, ammonia, and oil & grease concentrations
will increase as soon as blasting begins (during mine development), treatment approaches cannot be
addressed using adaptive management but must rather be in place before mining begins.256 The
response also states that nitrate will be addressed at the Plant Site if nitrate is included in the
discharge permit.257 However, much of the water at the Plant Site comes from the Mine Site, and the
response ignores the potential for transport of mine water to downgradient groundwater and surface
water at the Mine Site.
The FEIS also fails to address that neither chemical precipitation nor filtration, which are the
planned treatment schemes at the mine site, will remove nitrate or ammonia.258 The FEIS further
fails to properly address nitrate and ammonia in environmental modeling. And, the FEIS fails to
include mitigation measures or pollution prevention plans for minimizing the use of blasting
chemicals.
16.0
The FEIS does not adequately address the potential impacts of mercury.
Our comments on the SDEIS raised a number of issues related to mercury in leachate from mine
features, and its potential discharge to surface water through groundwater transport. We also
commented on mercury in air deposition and wastewater discharges. These issues affect wetlands,
the Partridge River, and the Embarrass River and its tributary streams. They are discussed at Friends
16-21 and CBD 21-33 and 54-55, and in CBDs comments on the Clean Water Act Section 404
permit, all of which are attached and incorporated herein by reference. In addition, we attach and
incorporate comments on the SDEIS by Daniel Pauly, who is a board member of Friends of the
Boundary Waters Wilderness.
Many of our points were ignored in the Response to Comments and the FEIS, in violation of 40
C.F.R. 1503.4(a) (agency must consider and respond to comments) and 40 C.F.R. 1502.9(b)
(agency must discuss in FEIS any responsible opposing view, and shall indicate the agencys
response to the issues raised). The following discussion addresses a few of the most important
253
Maest 2015 at 2.
Barr, 2007d at viii.
255
FEIS at A-764.
256
Maest 2015 at 3.
257
FEIS at A-764.
258
Maest 2015 at 3.
254
71
issues, but should not be taken to indicate that issues not repeated here are no longer of concern. All
of the points regarding mercury raised in the above-referenced comments remain an issue.
We pointed out in our SDEIS comments that the air deposition analysis fails to quantify the amount
of mercury that will be deposited in the Embarrass and Partridge Rivers from air emissions, despite
the obvious availability of this information. This point is reiterated by Keith Gadway in his expert
report submitted with the current comments. The FEIS reports on the change in mass loading of
mercury in the Embarrass and Partridge Rivers, but does not include the load from air deposition,
which misinforms readers.
The Response to Comments states The increase [from air deposition] would not be expected to
have any appreciable effect on the loading estimates from permitted discharges to the Embarrass
River, Partridge River, or the lower St. Louis River.259 As far as we can tell, this is simply untrue.
According to the FEIS, the loading estimates from permitted discharges are an increase of 0.2
grams per year to the Embarrass River, FEIS 5-230, and a decrease of 1.2 grams per year to the
Partridge River, FEIS 5-227. In contrast, the deposition analysis indicates that the increased load
from air emissions from the NorthMet Project would be between 5.88 and 21.06 grams per year to
the Embarrass River (upstream of Sabin Lake), and between 4.62 and 16.35 grams per year to the
Partridge River (upstream of Colby Lake).260 If the estimates for the watershed of these two lakes do
not reflect the load to the upstream rivers, please explain why.261 If they do reflect the load to the
upstream rivers, it is impossible to reconcile the numbers with the words no appreciable effect.
The Response to Comments also misrepresents the air deposition analysis as having been done by
MPCA.262 The analysis was actually done by Barr Engineering on behalf of PolyMet.
The FEIS also fails to quantify mercury discharging to surface water through groundwater. We
pointed out in our comments on the SDEIS that methods are available to model mercury transport
to surface water through groundwater. The EPA suggested one such method in its comment letter
of March 13, 2014263 (If GoldSim is not suitable to model this pollutant, elemental mercury can be
modeled using a different water quality model, such as the Water Quality Analysis Simulation
Program (WASP), which is commonly used by EPA to model elemental mercury.) Keith Gadway
suggests another: Simplified mercury modeling for point concentrations are available in MINTEQ
to evaluate chemical equilibrium and, when coupled with a transport model such as MODFLOW,
can provide useful data.264 We submitted an example of groundwater mercury transport modeling
259
FEIS A-407.
PolyMet 2015e, Att. U, App. B.
261
We made this argument in our comments on the SDEIS, including the numbers based on the
Colby and Sabin Lake upstream watersheds, and if we are wrong in our assumptions we would
expect the Response to Comments to explain why. However, the Response to Comments ignores
this issue altogether.
262
FEIS A-407.
263
Alan Walts to Co-lead Agencies, Supplemental Draft Environmental Impact Statement for the
NorthMet Mining Project and Land Exchange (March 13, 2014) (attached as exhibit 16a).
264
Gadway 2015 (Attached expert report).
260
72
that was done for a mine in Michigan with our SDEIS comments. The FEIS and Response to
Comments do not explain why none of these methods were used.
The FEIS takes the position that the mass balance studies are an adequate substitute for modeling.
But the West Pit mass balance study does not account for the mercury that will escape from mine
features through groundwater. The mass balance treats that mercury as being collected and settling
out in the West Pit or tailings basin, which is erroneous. The Response to Comments ignores this
point, and simply reiterates that the mass balance study was done to characterize mercury releases.265
It is possible that the greatest source of mercury to the Partridge River from groundwater transport
from mine features would be the Overburden Storage and Laydown Area (OSLA). A large volume
of peat will be excavated and stored in this area; as pointed out in Keith Gadways report, peat is
known to sequester mercury and to release it when excavated and exposed to wetting and drying.266
In addition, the OSLA will be unlined, and a larger volume of groundwater will enter the river from
this source than from any other mine feature.267 Furthermore, mercury from this source will enter
the river prior to the time that the Waste Water Treatment Facility begins discharging treated water
to the river (which is expected to dilute concentrations of pollutants that enter from the
groundwater flowpaths). Discharge of mercury from this source will occur prior to the time of the
predicted decrease of 1.2 grams per year in mercury load.
While several Theme Statements in the Response to Comments point this out, the responses
never address it. The response to MERC 20 is typical. The discussion only mentions water that is
routed to Pond PW-OSLA, which is routed from there to the Tailings Basin or mine pits. Release to
groundwater from either the OSLA itself or from the pond is completely ignored.268
PolyMet and the Co-lead Agencies take the position that mercury will not discharge to surface water
through groundwater or enter the treatment plant or facility at above 1.3 ng/L at any point in either
watershed. This position is based on shake-flask tests that do not stand up to scientific scrutiny.
These tests are wholly insufficient for the purpose they are used for, for reasons spelled out in our
SDEIS comments. The Response to Comments does not address any of our objections to the use of
these tests as the basis for assumptions about mercury groundwater transport through tailings or
from mine pits and waste rock.
Our SDEIS comments also objected to the selective use of data on mercury in seepage from the
tailings basin to support estimates of mercury in leachate. Although the FEIS figures have changed
based on additional data points, they still ignore data indicating that the mercury level is higher in
groundwater seeps than it is in surface seeps or pond water. Again, this point is ignored in the
Response to Comments and in the FEIS. And although the Response to Comments states that data
265
FEIS App. A at A-413, Theme MERC 13 (In response to comment that mercury should be
added to modeling and transport analysis, Co-lead Agencies stated, While mercury was not
explicitly modeled in the GoldSim platform, ercury ws modeled using a mass balance approach.)
266
Id.
267
FEIS 5-41.
268
FEIS A-419.
73
was reviewed for inconsistencies,269 it is unclear whether the problems identified by Daniel Pauly270
have been corrected.
All of these issues are of critical importance in regard to the mercury levels in influent to the Waste
Water Treatment Facility and Plant. Pilot testing of the RO system did not include treatment for
mercury, and the level at which the systems will remove mercury is simply unknown.271 The FEIS
assumption that the WWTF and WWTP will be able to achieve a 1.3 ng/L mercury concentration in
effluent appears to based on projections that influent will be below at or below that level.272
Although the FEIS states several times that RO technology is known to remove mercury,273 the
FEIS treats the level of removal as essentially irrelevant, because the analysis has already been
manipulated to indicate that the influent will meet the water quality standard. Before this project is
permitted, the agencies must correct errors and base mercury levels in influent on scientifically
acceptable evidence, followed by a scientifically sound analysis of the mercury removal capabilities
of the treatment systems.
We note that the mercury removal efficiencies in literature cited in the Pilot Testing Report will not
necessarily transfer to the treatment of influent from the NorthMet project. Removal of mercury at
very low levels to meet the 1.3 ng/L standard is notoriously difficult, far more difficult than (for
instance) achieving 99.9% reduction for an influent of 6 ug/L mercury, which still leaves the effluent
significantly above the 1.3 ng/L standard.
In its discussion of adaptive management, the FEIS states, Adaptive management would be
implemented as necessary based on monitoring for total mercury to determine whether the treated
water could be discharged to surface waters, or whether some additional treatment is needed.274
The text goes on to discuss possible treatments, but provides no information on how effective they
have proven to be. This is not adaptive management, which would identify the trigger point at which
adaptation would be required, along with measures that have been proven to give the necessary
results and what they would cost.
Furthermore, adaptive management cannot be used as a means to avoid the necessity of providing a
scientifically defensible analysis of mercury levels in the waste water treatment influent and effluent.
Regulatory agencies cannot simply accept PolyMets optimistic belief about influent mercury levels
and wait until the WWTF and WWTP are built to test the effluent to find out if it needs additional
treatment. At that point, several years of discharges at above the water quality standard are likely to
be necessary, discharges that would not have been permitted had they been properly assessed before
the mine was built. Weve all heard the adage that it is easier to get forgiveness than permission; that
adage should not form the basis of waste water discharge permitting.
269
FEIS A-408
Daniel Pauly to Lisa Fay, NorthMet SDEIS Review Comments (March 13, 2014) (Attached and
incorporated herein).
271
Id. at 36-43.
272
FEIS 5-226 (WWTF) and 5-230 (WWTP).
273
E.g., FEIS 5-226.
274
FEIS 5-238.
270
74
Finally, we note that while discharge of Colby Lake water without treatment for flow augmentation
is no longer proposed, it is unclear whether Colby Lake water might at times be routed directly to
the WWTP, for discharge to the environment below the tailings basin.275 Colby Lake water averages
at least 6 ng/L mercury,276 and the FEIS provides no evidence that the WWTP will be able to treat it
to the 1.3 ng/L standard.
As explained in our comments on the SDEIS, in the absence of site-specific data the wetlands at
both the mine and plant sites must be considered to already violate the water quality standard for
mercury. The FEIS includes a prediction that a certain number of acres of wetlands may suffer water
quality impacts due to groundwater transport and air deposition.277 Mercury from the project will
enter the wetlands from both sources, contributing to water quality standard exceedances in
violation of the Clean Water Act. PolyMets attempts to avoid the law by refusing to model or
otherwise provide scientifically defensible estimates of releases of mercury (to both wetlands and
streams) or other solutes (to wetlands) should not be countenanced by regulatory agencies. The Colead Agencies willingness to adopt PolyMets position (on this and many other things) does not do
justice to the people of Minnesota, who expect to see our environmental laws respected and
enforced.
We recognize that the amount of mercury in this case is small compared to the mass of mercury
circling the globe and coming down in precipitation, but we do not agree that this makes it
insignificant. Mercury in the environment is a serious public health issue, especially in Northeastern
Minnesota. It is a cumulative problem; the mercury load to any particular water body comes from
thousands of sources. When the Great Lakes Initiative (GLI) was adopted, it was with the
recognition that drastic measures were needed to address this issue, and a complete prohibition was
placed on new or increased discharges of mercury to any water body in the Lake Superior basin,
including the Embarrass River. The mining industry might find it inconvenient, but the decision was
made in a lengthy process with extensive public input, and that public now expects the law to be
followed. It is disheartening to see that regulatory agencies are supporting the mining industry in its
attempts to circumvent the GLI.
As explained in CBDs SDEIS comments and letter to the Army Corps of Engineers, in Minnesota
at least, the prohibition on new or increased mercury discharges extends to wetlands through the
application of water quality standard regulations. This is particularly appropriate in regards to
mercury, because wetlands play such a significant role in producing methylmercury, which in turn
makes fish unsafe to eat. The NorthMet project will also increase sulfate levels in wetlands, which
may play an even greater role in increased mercury methylation. We note that the FEIS added an
275
See, e.g., A-133. While this response to comments directs the reader to FEIS Section 5.2.2, that
section is 250 pages long, and we were unable to find more specific information about the plans for
Colby Lake water.
276
FEIS 4-100. Table 4.2.2-18 provides data from three sources; the data from Barr Engineering
averaged 6.0 ng/L, while MPCA data was much higher, possibly due to older data and/or detection
levels that were much higher than the concentration in older samples.
277
FEIS 5-312 and 5-338.
75
analysis indicating a potential increase in sulfate levels in wetlands from air deposition alone at 1.7
mg/L, after dilution from precipitation.278 While the FEIS treats this as negligible, it is actually quite
a substantial addition to wetland waters. We were unable to find any baseline information about
water quality in the wetlands at the NorthMet site, and our understanding is that there is none.279
The background sulfate level in surface water in Minnesota is often estimated at 3.0 mg/L or
below;280 we assume this is an approximate level for wetlands at the mine site at least. If so, increases
from air deposition alone would be as high as 50%. Although MPCA estimates that any waters with
a current sulfate level below 40 mg/L are high risk waters for increased mercury methylation, this
does not mean that sulfate does not significantly increase methylation of mercury at much lower
levels. According to scientific literature, increasing sulfates from 3.0 to 4.7 mg/L in wetlands would
be expected to significantly increase mercury methylation.281 Even with similarly low levels of
sulfates in most northern Minnesota waters, we have a dire situation in regards to mercury in fish
tissue.
Small increases in both mercury and sulfate in the water of extensive wetland areas are virtually
certain to increase mercury methylation, and to lead to increased mercury levels in fish tissue and in
fish-eating wildlife. Methylmercury is known to build to high levels in this situation, flushing out to
area streams and lakes with snowmelt or floods.282 This phenomenon is expected to increase in
Minnesota with global warming.283 The increases in mercury and sulfate that can be expected from
the proposed project are likely to result in significant impacts, and thus must be properly assessed in
the FEIS; monitoring cannot take the place of this assessment.
17.0
The FEIS fails to adequately disclose, analyze or discuss the effects of the project on
area wetlands
The FEIS still fails to adequately disclose, analyze, or discuss a number of questions regarding the
environmental effects of the PolyMet mine and processing facility on area wetlands, addressing few
of the questions and issues raised in the extensive comments on the SDEIS. Therefore, the
Conservation Organizations restate and incorporate in their entirety, the comments and
accompanying expert reports of MCEA, Friends, and CBD on wetlands and related issues regarding
hydrology, water quality, and financial assurance.284 The Conservation Organizations address below
278
FEIS 5-313.
This begs the question of how PolyMet or the DNR and MPCA will know when wetlands have
been impacted. What level would sulfate or methylmercury levels have to reach before they became
a matter of concern? If this is never defined, what is the point of monitoring?
280
See FEIS 4-91, Table 4.2.2-15 (mean sulfate levels in Longnose Creek, West Pit Outlet Creek, and
Wetlegs Creek currently range from 0.91 to 3.9 mg/L sulfate).
281
FEIS Reference Branfireun et al. 1999 (increasing sulfate to 4.6 mg/L in sediment pore water
increased methylmercury by a factor of 10).
282
FEIS Reference Balough et al. 2006.
283
Id.
284
MCEA at 13.0; Friends at VI; CBD at Part J; Comments on Section 404 Permit, dated March
13, 2014, from Save Our Sky Blue Waters et al. to the U.S. Army Corps of Engineers and copied to
the U.S. Forest Service (also attached as Exhibit 17a).
279
76
the change from the SDEIS to the FEIS in the identification of a number of wetlands from not
likely to be indirectly affected to low likelihood of indirect effects, as well as a few of the relevant
responses to comments (and their failure to adequately address issues raised). We also highlight and
emphasize some of the continuing wetland issues that are critical to permitting decisions moving
forward.
17.1
Wetland Identification and Classification.
One of the primary issues raised in comments on the SDEIS concerned the failure to adequately
classify and the potential misclassification of minerotrophic wetlands as opposed to ombrotrophic
wetlands. While Eggers January 2015 Memorandum appears to agree with Dr. Glaser regarding the
references and guidance to be used in such identification, the FEIS is at best conflicted, and at worst
simply wrong, in its approach to identifying project-affected wetlands as either ombrotrophic or
minerotrophic and the resulting potential for negative effects and type of negative effect.285 Instead
of identifying wetlands that may be affected and their type, the FEIS now simply assigns a low
likelihood of effect to area wetlands in an effort to avoid assessing wetland character as
minerotrophic and to negate or minimize the importance of identifying specific wetlands as
minerotrophic in the affected area. While it is correct that this is a slightly more conservative
approach than the approach originally taken in the SDEIS, it is neither an accurate nor complete
approach and tends to trivialize why it is important in environmental review to make the
distinction.286 Type of wetland will be relevant for more than assessing indirect effects as a result of
hydrology and it is a required component of an EIS as well as analysis for the purposes of issues a
C.W.A. 404 permit.
First, as discussed below, hydrology is not the only manner in which wetlands will be and are
affected by the project, but it is a component among several. In order to fully understand effects, all
ways in which wetlands might be affected should be addressed. Therefore, simply changing from no
likelihood of effect to low likelihood does nothing to address the overall potential for effects to area
wetlands, including the heightened potential for effects to minerotrophic wetlands and their unique
characteristics.
Second, low likelihood as a blanket statement utterly fails to include the required level of analysis
and disclosure for an EIS. There is no analysis in the blanket probability statement in the FEIS. A
generic statement about all wetlands on and around the site tells the co-lead agencies, decisionmakers, and the public absolutely nothing about what may occur as a result of the project and what
is lost because of it. And, the blanket low likelihood statement, absent assessment and analysis of
wetlands that are actually in the area and their hydrologic character, is simply inaccurate. It is
unlikely that all ombrotrophic and minerotrophic wetlands in the area are vulnerable to effects from
285
See Report by Paul Glaser, Critique of PolyMet/NorthMet Final Environmental Impact

Statement, dated (Dec. 17, 2015) (Attached expert report) [hereinafter Glaser 2015]. See also Glaser
Report 2014, attached to MCEA SDEIS comments [hereinafter Glaser 2014].
286
See Glaser 2015 at 1-3.
77
the project in the exact same manner and degree. This is not analysis based upon evidence and
science; this is just an effort to escape the requirements for environmental review.
Third, the blanket low likelihood coupled with the FEISs simplistic use of distance from the pit
in areas between the East Pit and the Peter Mitchell pit as the only measure of whether a wetland
might be affected by drawdown, fails to adequately assess potential wetland effects.287
Fourth, also discussed in more detail below, the type of wetland is important to identifying type and
difficulty of mitigation needed and may affect whether the effect must, under applicable law, be
completely avoided. As the FEIS acknowledges, both state and federal law require that full function
of wetlands be mitigated if they cannot be avoided (avoidance is by far preferable and the required
first step in analysis and decision-making for projects that will affect all types of wetlands)288
Function includes the hydrology and the plants and wildlife that are dependent upon that hydrology
and the characteristics of a particular wetland type, including whether that wetland is ombrotrophic
versus minerotrophic.289 It also includes placement of the wetland in the landscape and relationship
to the habitat and ecosystems within the area. Where a wetland is unique, rare, and/or difficult to
restore or mitigate, avoidance is even more important and mitigation ratios must increase.
While it may be correct that an EIS does not require original scientific research, it does require
assessment and analysis of the site of the project itself sufficient to adequately characterize the
environmental effects. Analysis of the actual site is not original research, it is in fact the very point
of environmental review. There is no reason the project proponent and/or its consultants and/or
the co-lead agencies cannot access the site and survey potentially-affected wetlands to determine
type through soil and plant analysis. The FEIS has been years in the making and this issue in
particular was raised by the Conservation Organizations and their experts in comments over 20
months, and two entire growing seasons, prior to the issuance of the FEIS. In particular, MCEAs
original comments on the SDEIS, at 87, criticized the lack of vegetation plots for assessment of
wetland types and potential effects. Moreover, when the Conservation Organizations requested
access to the site to conduct their own analysis during the 2015 growing season (something that the
proponent and co-lead agencies should have done, but that non-profits were willing to do
nonetheless), PolyMet denied access to public lands and the Forest Service allowed PolyMet to do
so.290 Finally, the Response to Comments, e.g. at A-485, complains that a quantitative functional
wetlands assessment has not been done because there is not a software program that can accomplish
this task for a particular site. While that may be true, it does not then allow the project proponent
and co-lead agencies to simply skip the task altogether. The combined effect rises to the level of
purposeful, studied ignorance and avoidance of the plain legal requirements of NEPA, MEPA, and
404.
287
See Myers 2015 at 25-29.

33 C.F.R. 320; 33 C.F.R. 332.2.
289
See Glaser 2015 and Glaser 2014.
290
See letter from PolyMet to Dr. Paul Glaser dated August 26, 2015 (attached as Exhibit 17b).
288
78
The FEIS fails to adequately identify minerotrophic wetlands potentially affected by the project and
has plainly made no attempt to do so. The Conservation Organizations strongly disagree with the
premise in the FEIS that by changing the description of potential indirect effects to low likelihood
as opposed to no likelihood allows the co-lead agencies to avoid analysis and disclosure of potential
for negative effects to wetlands from the project. This shorthand and non-analytical approach is
inadequate and misleading.
17.2
Avoidance and Mitigation
The state and federal requirements for projects that affect wetlands have been set forth in earlier
comments and in the FEIS itself and will not be repeated in detail here. Nonetheless, the
Conservation Organizations emphasize two important components of wetland preservation and
mitigation: the need to wholly avoid impacts to unique and rare natural resources and the need to
fully mitigate all functions of any affected wetlands resource. The FEIS fails to provide adequate
information and analysis of wetland impacts within those legal requirements and associated
mitigation to address these requirements.
17.2.1 State and federal law require that effects to rare natural communities must be
avoided.
The FEIS acknowledges that the Minnesota Wetland Conservation Act (WCA) requires special
consideration for wetlands that are rare natural communities.291 Rare natural communities are native
plant communities having conservation rank of S1, S2, or S3, or are communities within an area that
has outstanding or high biodiversity significance rating.292 The FEIS further acknowledges that the
entire project area is one of high biodiversity significance and that most of the S2/S3 ecosystem is
within the mine site itself or within the direct influence of the mine site activities and effects.293 More
than 50% of the Upper Partridge River area of high biodiversity significance will be obliterated by
the mine and associated mine features, while a substantial portion of the remaining 50% of the high
biodiversity significance will be indirectly negatively affected by the mine. The FEIS continues,
however, to omit any analysis of what this actually means in terms of ecosystem impacts,
implications for downstream and surrounding areas and the wildlife and vegetation that is present or
dependent on these high-quality areas, and fails to address the implications for mitigation. These
very questions were originally raised in comments on the SDEIS by Friends,294 MCEA,295 and
CBD,296 and remain unaddressed. Plainly, even if the FEIS does not expressly so state, the mine will
permanently destroy the rare natural communities identified. The FEIS also fails to address the issue
291
Minn. R. 8420.0515, subp. 3.

BWSR/DNR Wetland Conservation Act and Rare Natural Communities Technical Guidance,
January 31, 2011 (attached as Exhibit 17c)
293
FEIS at 4-201; Resp. to Comments at A-518 (also acknowledges Aquatic Resource of National
Importance); Resp. to Comments at A-519 (notes mapping of large single wetland complex).
294
Friends 53.
295
MCEA 78-79.
296
CBD 53, 63-64.
292
79
this raises regarding Minn. R. 8420.0515, supb. 3, which provides that mitigation plans must be
denied for an activity that involves the modification of a rare natural community if the proposed
activity will permanently adversely affect that natural community.
The foundation for this requirement is plain: rare natural wetlands communities such as those at the
PolyMet site, comprised of a large, contiguous assemblage of northern peatland wetlands including
coniferous bog (both ombrotrophic and minerotrophic) is impossible to restore or recreate
elsewhere. Mitigation of the functions for this wetlands complex is an unworkable and unsupported
concept. There is no scientific evidence that it can or has been successfully done. The research
strongly cautions against allowing effects to peatland or bog environments because they cannot be
rectified. The scientific literature is largely in agreement on this point. As noted by an article
authored by EPA and provided on USGSs website, these types of wetlands have developed over
thousands of years and have hydrologic conditions that are difficult, if not impossible, to
duplicate, and that experts agree that bog and fen ecosystems are the least likely to be effectively
replaced.297 This is consistent with the report of the National Research Council in 2000298 that
pointedly stated wetland mitigation to date had been largely a failure, resulting in continuing net loss
of wetlands and further emphasizing that bog wetlands in particular do not appear susceptible of
restoration or mitigation once harmed.299 The NRC Report, in surveying the literature, stated
wetland types like fens and bogs cannot be effectively restored with present knowledge, and
recommended avoiding impacts to those resources.300 In a follow-up article, scientists on the panel
stated that the no net loss mitigation program had been in fact fostering a net loss of approximately
eighty percent of wetlands.301 For years, the Corps has followed the advice of the NRC Report that
bog and fen-type ecosystems are difficult-to-replace and impacts to them should therefore be
avoided. Research published as recently as 2012 continues to demonstrate these problems, finding
that restored wetlands, despite real effort (as opposed to the often failed and incomplete efforts
allowed by regulatory agencies) still suffer from structural and functional loss of ecosystem
function.302
297
Kentula, Mary, 2002, USGS Water Supply Paper #2425, Wetland Restoration and Creation (attached
as exhibit 17d)
298
National Research Council, Compensating for Wetlands Losses Under the Clean Water Act (Natl. Acad.
Press, 2001) (attached as Exhibit 17e).
299
Id. at 2-10.
300
Id. at 4.
301
R. Eugene Turner, Ann M. Redmond & Joy B. Zedler, Count it by Acre or Function: Mitigation Adds
Up to Net Loss of Wetlands, 23-6 Natl. Wetlands Newsltr. 5, at 15 (2001) (attached as Exhibit 17f).
302
Moreno-Mateos, David et al., Structural and Functional Loss in Restored Wetland Ecosystems, PLOS
Biology, January 2012 (attached as Exhibit 17g). This same study emphasizes that this is particularly
the case in cold, humid environments, that is, northern peatlands. Id. at 1, 5, and 6. This study also
notes that large restorations fare better than small. Id. While the three sites proposed by PolyMet are
fairly large in size, they are still dwarfed by the actual area directly affected by the PolyMet mine
alone (much less the processing facility and indirect effects.) One of the key ecological functions of
the PolyMet site is that fact that it is very large and intact, featuring a complex natural assemblage of
plants, hydrology, wildlife habitat and wetland types. This function is completely lost in the wetland
mitigation proposals set forth to date in the FEIS.
80
Despite the requirements for high value and difficult to replace wetlands and ecosystems such as
those proposed to be destroyed by PolyMet, and despite the agreement in the science regarding the
fallacy of thinking that the destroyed wetlands can be replaced or restored, the FEIS spends no time
contemplating, analyzing or discussing these issues and concerns and blithely proposes mitigation
business as usual.303
17.2.2 Indirect wetlands effects are not adequately disclosed and analyzed and are defined
too narrowly.
Both federal and state law are clear that wetland effects that must be avoided and/or mitigated
include all direct effects (e.g. where wetlands will be destroyed by the mine pit) and indirect effects
which includes changes in size, type, hydrology, or plant composition of a wetland as well as overall
biodiversity and function of the wetland within the larger landscape. Both direct and indirect effects
must be mitigated under state and federal law, and the mitigation must replace the full functions lost
by virtue of either the direct or the indirect effects. Yet the FEIS fails to adequately identify and
analyze indirect effects and further defines and treats indirect effects very narrowly. The FEIS
appears to constrain the definition of indirect effects on wetlands as including only changes in the
hydrology of a wetland as a direct result of mine or processing facility activities or by virtue of
fragmentation, further appearing to narrowly define fragmentation as a diminishment in physical
size (i.e. acreage) of a specific individual wetland.304 Even fragmentation is largely regarded through a
hydrological lens. These constraints fail to address and disclose all potential impacts to wetlands
from the PolyMet project and in turn fail to address the full mitigation obligation primarily by
fragmenting the analysis itself on a wetland by wetland basis instead of looking at the entire,
complex wetland and ecosystem assemblage that is the mine site.
First, the FEIS fails to adequately disclose and analyze potential indirect effects even within the
narrow definitional constraints used. The FEIS simply states there will be a low likelihood of
indirect effects and leaves the analysis for another day, likely after the mine has already started
operation and it is far too late to avoid effects; the damage will occur by the time it is identified as
even a possibility.305 This is unacceptable. While the Conservation Organizations acknowledge that
303
All of the research cited in the Response to Comments section regarding the ability to actually
restore or replace the functions of these difficult to replace ecosystems predates the comprehensive
NRC Report and research following the Report cited above, therefore being of little value to the
debate. Only (Sottocornola, 2007) post-dates the research above, but a review of the paper
referenced shows that it has no relevance to these issues. There is effectively no research that
supports the FEISs theory that the resources that will be damaged or destroyed in the PolyMet
project can be replaced or restored, especially not as proposed by PolyMet in its bare mitigation
plans.
304
The FEIS does also treat air deposition as an indirect effect; that issue is dealt with below.
305
MCEA earlier raised this very issue in comments on the SDEIS, at 89-91, noting no detail
regarding effects monitoring, not details regarding whether actual representative conditions or plant
communities will be monitored, when an effect would be considered to have occurred, or what
81
the co-lead agencies may be currently unable to identify and analyze all indirect effects to wetlands,
they can certainly identify some and begin to assess which are more likely than others. For example,
DNR acknowledges the validity of the modeling and criticisms from GLIFWC regarding
groundwater drawdown and flows in the area between the PolyMet pit and the Northshore mine.306
The information in the FEIS and supplied by GLIFWC demonstrates groundwater flow in and out
of the north side of the PolyMet east pit. The FEIS also acknowledges that the Cat 1 stockpile will
have an effect on water flowseven if the operation is as PolyMet intends, indirect effects are likely
to occur. This is adequate information for the FEIS to provide that some indirect effects are in fact
likely to occur and make an estimate of where and what they are. This is particularly important for
mitigation as mitigation is required to occur BEFORE the effects do. The co-lead agencies should
make every effort to identify potential effects now and protect against them with conservative
mitigation measures and ratios, not wait for the damage to occur and then scramble for a solution.
Second, the narrow approach to defining indirect effects fails to conform to the legal requirements
for avoiding and/or mitigating all effects to wetlands. Hydrologic changes are of course an
important component of indirect effects to wetlands. With respect to hydrologic changes, the FEIS
provides that only those hydrologic changes that result in a 20% change in watershed area
(converting a functionwetland hydrologyto an areal or geographic measure) will be considered
an indirect effect.307 It cites solely to a paper by Richter for support of this standard. Upon review,
the paper cited does not apply. The Richter paper concerns flow in rivers (and barriers or alterations
affecting flow, like dams), an entirely different ecosystem than peatland wetlands. Nothing in the
paper suggests it is transferable to any other ecosystem analysis much less peatlands or other
wetlands. And it isnt even addressing watershed area the metric with which the FEIS purports to
be concerned. Rather the paper is referencing 20 percent reductions in river flow, an entirely
different metric. It is specious for the FEIS to cite to this as support for a number that otherwise
appears entirely arbitrary for assessing indirect hydrologic effects to wetlands. The co-lead agencies
admit that the paper is really only about river flows, but state, with absolutely no explanation,
discussion, or support, that they believe it provides a foundation for using the 20% number
here.308 The co-lead agencies belief finds no support in the science or the law. The law provides
that indirect effects must be avoided and if they cannot be avoided mitigated. It does not set a
threshold of 20% before the requirements take hold. The co-lead agencies are wrong and arbitrary.
Third, the narrow definition tied almost exclusively to hydrologic measures also does not take into
account the obvious effects on the overall complex of wetlands and the diminishment of the
would be required should an effect become evident. The Response to Comments fails to respond to
these issues noting only that the monitoring of hydrology should observe indirect effects sooner
than other methods that might be used (e.g. plant assemblage or subsidence.) This does not address
the issues raised in previous comments.
306
Myers 2015 at 24-29 echoes this critique.
307
It is less than clear precisely how the FEIS is considering using this 20% but it appears to mean
that a 50 acre wetland would have to shrink by 10 acres in watershed size before it is considered
indirectly affected. This appears to be the measure because 20% flow doesnt really have any
meaning in the wetland context.
308
FEIS App. A at A-498.
82
function of the area known as the Hundred Mile Swamp. As noted previously and as is plain from
maps and the co-lead agencies own documents and statements, the area of the PolyMet mine site is
a very large intact northern wetland complex, including many high-quality natural communities. This
area, as a whole, is the headwaters for the Partridge River. This area functions as a whole, not as a
group of smaller, isolated wetland and/or upland ecosystems. Therefore, the FEIS treatment of this
area as a group of small isolated wetlands each of which can be destroyed or negatively affected
without regard to others is scientifically unsupported and unsupported by the agencies own
previous assessment of the area. The system of assigning a value of 0 to 6 to assess risk to each
small increment in the system is simply the appearance of an iterative process, but it is in fact a
purposefully artificial constraint on assessing the potential risk to this integrated wetlands complex
and ecosystem and the need to avoid or mitigate effects to it. The co-lead agencies make the classic
error of slicing and dicing an integrated ecosystem in order to minimize negative effects and to
effectively deny their consequences.
The law demands that the function of the entire affected system be taken into consideration in the
avoidance and mitigation analysis and requirements. In particular, the FEIS fails to address the
effect of taking the larger intact northern peatland and forest assemblage and reducing it to a narrow
strip of property, likely with changed hydrology and dust deposition, between two huge mines
PolyMet and Northshore. The entirety of the area, particularly the entirety of the area between these
two mines, must be considered indirectly affected with respect to a functions analysis and addressed
in the avoidance and mitigation components of the FEIS regardless of hydrological effects
determined by after-the-fact spot checking in isolated locations.309 The FEIS fails to analyze and
discuss the functions of the large intact assemblage---the interaction and value of a complex mix of
forest and wetland, within a headwaters; the role of the plant and wildlife mix and connectedness of
the systemand fails to analyze and discuss the effect of eliminating the large intact assemblage,
leaving in its place a very small and likely altered remnant. Instead, the FEIS treats each small
individual wetland as an isolated ecosystem, an approach wholly unsupported by science or the facts.
Finally, the FEIS fails to propose mitigation for these obvious effects. The entirety of the hundred
mile swamp complex should be considered indirectly affected due to its large reduction in overall
size and should be mitigated (if the project is allowed to proceed as proposed) as its function will
plainly be lost.
17.2.3 The FEIS inadequately addresses climate change implications for wetland impact
avoidance and mitigation.
Climate change and its effect on northern wetlands is also inadequately addressed in the FEIS. The
FEIS is lacking in this regard in two ways. First, the FEIS fails to adequately identify and analyze the
effect that climate change will have on the northern peatlands landscape and how that should shape
the avoidance component of wetlands regulation and/or the mitigation requirement. Nowhere in
the wetlands section is climate change mentioned. Only in the Response to Comments on wetlands
does the document claim a qualitative assessment of the potential impacts of climate change on
309
See Glaser 2015; FEIS at 4-5.

83
wetlands is included in FEIS Section 5.2.7.2.4.310 Section 5.2.7.2.4 follows on the air quality section,
not an obvious placement for wetland impacts. More to the point, Section 5.2.7.2.4 contains little to
no assessment of climate impacts on wetlands, much less a qualitative assessment stating only that
climate change may affect some wetlands in some ways. It then references Barr 2012l. Barr 2012l
can be summarized as stating climate change may make some wetlands wetter, some drier, some
hotter, some shadier and that increased temperatures may release more methane.311 The total
amount of text devoted to the topic is no more than a page and can hardly be described as a
qualitative assessment of what is actually going to occur with wetlands on the site and more
importantly contains no discussion of what that may mean regarding impacts from the project and
need for and location of mitigation. A quick search for even a single piece of local research would
have produced more detailed information.
Recent research suggests that Minnesota boreal peatlands may suffer most from the effects of
climate change.312 Most vulnerable will be the southern extent of those lands---the very areas where
PolyMet proposes two of the three mitigation sites. Coupled with the science on how questionable
mitigation for peatlands is, it is plain that the agencies must consider avoidance of effects to the
PolyMet wetlands as an important hedge against the effects of climate change. Maintaining intact
ecosystems is plainly identified as the preferable path in the face of climate threats.313 In light of the
science, the FEIS must discuss how eliminating a vast area of high-quality and intact wetland will
affect overall system resiliency in the face of climate change. At a minimum, the FEIS must analyze
and discuss how climate change may affect the success of the proposed mitigation and whether or to
what extent the mitigation proposal may have to adjust in light of climate effects, whether in terms
of location, overall size, watershed, and/or ratios.
Second, the FEIS at best is confused on the issue of carbon sequestration and at worst is misleading.
The science is undisputed that the best carbon sinks on the planet are peatlands. Globally, peatlands
represent just 3% of all soils but contain more than one-third of all soil organic Carbon. A
preliminary inventory of peatlands in Minnesota estimates that the 5.73 million acres of peatland in
the state contain 4,250 megatonnes (million metric tons) of C, or approximately 745 metric tons of
stored C per acre.314 Moreover, drying of peatlands from water drawdown increases emissions of
310

Barr 2012l at 50 and 53.
312
Susan Galatowitsch, Lee Frelich, Laura Phillips-Mao, Regional Climate Change Adaptation Strategies for
biodiversity Conservation in a Midcontinental Region of North America, Biological Conservation 142 (2009)
(attached as Exhibit 17h). This study has also been cited to the Minnesota Dept of Natural
Resources previously in the 2009 Report from the Moose Advisory Committee.
313
See id. at 4.2 (Ecosystems in relatively intact landscapes currently may have sufficient resilience
but land and water use policies should be conservatively implemented in these regions as well, to
avert resilience loss.)
314
Estimates based on data from the Minnesota DNR peatland inventory, the USDA-NRCS
STATSGO and NASIS database, and the 1990 LMIC land cover data. Information from The
Potential for Terrestrial Carbon Sequestration in Minnesota, Report to Minnesota DNR, February
2008 (attached as Exhibit 17i).
311
84
both carbon and methane, creating a feedback loop and increasing fire riskanother source of
carbon emissions.315
The Response to Comments, while acknowledging the loss of carbon sequestration, claims that
restoration elsewhere will compensate.316 This statement comes with no support. There is no
independent science to support the claim that the carbon sequestration benefits of the mixed, old
peatlands at the PolyMet site will be mitigated with wetlands at any of the three mitigation sites
(especially since two of them are south of the project site and dont propose to replace coniferous
bog habitat.). Also, even if some mitigation occurs, there is no mitigation for the very big one-time
release of the destruction event itself, much less the over-time release that is bound to happen from
some indirect effects over time. There is no discussion in the FEIS of the loss of sequestration, or
the effects of that loss on the environment. The published research makes clear that avoiding
impacts to peatlands is the only way to ensure that they continue their function as a carbon sink and
serve as a refuge for future climate change impacts.
17.2.4 The FEIS fails to explain how the proposed mitigation complies with the law.
As stated above, state and federal law requires mitigation for lost or degraded wetland functions
when those effects cannot first be avoided. PolyMet currently proposes to mitigate only direct
impacts to site wetlands and proposes to mitigate the majority of those negative effects outside of
the Lake Superior watershed. The only explanation for why the co-lead agencies believe this is
acceptable is because mitigation sites were difficult to find within the watershed. This runs
counter to the Friends and MCEAs own expert analysis317 and the FEIS fails to provide adequate
detail for the public to understand and judge whether rejection of certain sites was proper. Further,
even if it is true that there are no acceptable mitigation sites within the watershed, there is nothing in
the law that then excuses PolyMet from application of the avoid and mitigate requirements. If the
impacts cannot be avoided, they must be mitigated. If they cannot be mitigated they cannot be
allowed. The co-lead agencies position in the FEIS appears to be that the law is only a strong
suggestion or guidance, to be complied with if to do so is relatively easy. This approach would
render the law meaningless and that is outside the co-lead agencies authority.
The apparent lack of mitigation opportunities within the watershed further raises questions with
respect to PolyMet and the co-lead agencies failure to address expected indirect impacts (discussed
above) now, before the impact occurs. Again, that is not compliant with the temporal requirements
for mitigation in the law and the FEIS provides no explanation for how the co-lead agencies think it
might be. Further, it highlights the fact that mitigating for likely future indirect impacts will be
315
Id., See also, BWSR Carbon Sequestration in Wetlands: Summary of Research, December 2008
(attached as Exhibit 17j)(Overall, research studies agree that carbon storage is enhanced in wet
systems. Also, evidence suggests more carbon is sequestered by a richer mix of native species.
Species-rich ecosystems are more stable over time and may provide a faster, stronger response to
future changes in atmospheric carbon dioxide concentration.)
316
317
See Glaser 2015 and Glaser 2014 regarding Alborn fen site.
85
difficult within the bounds of the law. If the co-lead agencies properly require mitigation for the
entirety of indirect effects to the Hundred Mile Swamp functions and for expected indirect effects
given what is already known about flow between PolyMets east pit and Northshore, thousands
more acres of wetland must be mitigated. If the co-lead agencies already know that mitigation sites
are severely limited, moving forward and allowing impacts nonetheless is irresponsible and not
compliant with the law. As MCEA states in the SDEIS comments, thousands of acres of wetlands
may be affected with no potential mitigation option identified much less provided before the effects
occur.318
In addition to the out-of-watershed and temporal violations inherent in the current approach, the
FEIS pays lip service to mitigating functions lost, but it provides no real discussion of how PolyMet
will in fact mitigate or restore coniferous bog wetlands, and in particular how PolyMet will
recreate a groundwater-fed fen. The suggestion of as much borders on ridiculous. The scientific
literature is replete with statements about how it is nearly impossible to mitigate bogs, how it has
rarely (if ever, depending on how success is defined) been done successfully, and that therefore,
damage to these wetland types should always be avoided. The Conservation Organizations are
unaware of any example of a fen being mitigated. And the FEIS appears to recognize this when it
continues to talk about targets for mitigation319 admitting that if the coniferous bog and swamp
restoration is unsuccessful then targets will simply be readjusted to be whatever PolyMet actually
comes up with in the mitigation effort. The so-called targets concept does not comply with the laws
requirement to fully replace lost functions and is in fact more of a moving target for mitigation.
Finally, given the out-of-watershed proposal and obvious difficulty with actually mitigating the
functions that will be destroyed within a timeframe wherein those functions will actually be replaced,
the FEIS provides a somewhat incoherent discussion of mitigation ratios. At some level the FEIS
provides for 2:1 but then engages in lengthy speculation regarding reducing those ratios to 1:1. The
charts showing mitigation acres actually show that coniferous bog will not be mitigated on a 1:1
basis; it appears that PolyMet will rely on coniferous swamp at their Aitkin site for some of those
acres, a failure to meet the mitigation requirements of replacing full function. The co-lead agencies
must require 2:1 as the minimum replacement ratio for all wetland effects from the PolyMet project.
There is no scientific, legal, or factual support for anything less.
17.3
The FEIS fails to address increased potential for mercury methylation in area
wetlands.
As the FEIS recognizes, the mine and ore transport facilities will result in airborne particulates and
deposition of those particulates in area wetlands.320 While the FEIS provides some information
regarding inhibited photosynthesis and the response to comments provides some discussion of
318
MCEA at 83.
MCEA at 81.
320
In the Response to comments, FEIS App. A at A-505, there is a statement that dust and spillage
are not regulated under CWA 404. This is incorrect if it is being suggested that discharges from
rolling stock are not regulated under the Clean Water Act.
319
86
sulfate and some other metals running off (largely discounting any potential effect) the response to
comments in the FEIS wholly fail to answer the comments that raised potential for increased
mercury methylation from the deposition of sulfates and mercury in ore and rock dust.321 The FEIS
acknowledges the research, much of it from Minnesota, that demonstrates sulfates and mercury
deposition in peat environments is a synergistic combination. Sulfate hastens the methylation of
mercury in the peat environment making the mercury bioavailable. While comments on the SDEIS
raised this issue and asked for analysis of how deposition from the PolyMet project will affect
mercury methylation in area wetlands, the FEIS failed to include this analysis and the response to
comments wholly dodges the question.322 The only response claims that mercury that will be
deposited from dust and spillage is within the variability of background.323 This does not address the
direct question of what effect increased mercury and sulfate, acting synergistically, may have on
methylation of mercury in the subject wetlands.
17.4
The FEISs discussion of financial assurance for wetland mitigation obligations is

wholly inadequate and largely absent.
In the response to comments, the FEIS wetland section refers to the financial assurance responses
at FIN 11 for the discussion of financial assurance related to wetland effects.324 FIN 11 includes no
information on financial assurance other than a statement that it will be required. This is wholly
inadequate and not compliant with NEPA and MEPA requirements. While the precise form and
amount of financial assurance may not yet be finalized, there is a significant amount of information
that can and should be provided to the public about what amounts are likely needed to ensure the
monitoring and mitigation necessary for the project to comply with the law. PolyMet and the co-lead
agencies also know the various forms of instruments available for financial assurance and the FEIS
should include a discussion and analysis of the risks and benefits of each type in order to provide the
public an understanding of what instruments are preferable and why.
17.4.1 Assurance for monitoring for indirect effects.
The FEIS defers the issue of indirect effects and claims that indirect wetland effects will not be
mitigated prior to commencement of the mining project. Rather, the FEIS provides that wetlands
that have the most probability of impacts (a questionable concept in itself, see discussion above) will
be monitored and if indirect effects occur, they will be identified and mitigated. Putting aside the
issue of whether this is an acceptable approach to indirect effects as a whole, there remains a serious
issue regarding financial assurance to ensure the monitoring will occur at a frequency and adequate
number of locations, and for a sufficient period of time after mine closure. The project proponents
and the co-lead agencies should disclose the cost of the proposed monitoring given that they know
where they intend to place monitors (with their purported ratings approach) and they know how
much monitors cost. The costs of monitoring should be extended for the period of time after
321
FEIS App. A at A-506 to 509.

Id.
323
Id. at A-508.
324
Id. at A-366.
322
87
mining ceases that effects are expectedat least for a length of time after the East Pit fills given the
modeling showing movement of water between the East Pit and Northshore and the possibility of
flows northward. This is a knowable cost estimate that should be provided to the public.
17.4.2 Assurance for mitigation.
The FEIS also must disclose the cost estimates for wetland mitigation. The project proponent and
co-lead agencies already know the sites where they propose to mitigate for direct wetland effects.
Information regarding the costs associated with acquisition of those sites, either directly or through
leasing or purchase of easements, is known. Also known are the bulk of activities necessary to
restore those sites as demonstrated by the discussions of hydrology restoration, planting, and
monitoring set forth in the FEIS. For example, PolyMet and/or the co-lead agencies are fully
capable of estimating labor costs, time, equipment necessary to the job and costs of seedlings to
arrive at an estimate. Again, those are known quantities with known and knowable costs whereby an
estimate can readily be provided. The mitigation sites will also require their own monitoring,
another cost estimate that must be provided and that can be readily known with information
available now.
This information would also allow an estimate for the public for future mitigation needs for indirect
wetland effects. It is critical that PolyMet be required to set aside funds should indirect effects need
to be mitigated at some point in the future. With the information available regarding mitigation for
direct effects, at least some general estimate can be given for financial assurance needs for future
indirect effects.
17.4.3 Financial assurance instruments
The FEIS includes no information regarding available financial assurance options and the risks and
benefits of each, information that is important to co-lead agencies ultimate decision and certainly
important to the publics understanding and assessment of the project and its effect on Minnesotas
environment and Minnesota taxpayers. Financial assurance can take the form of cash held in reserve
by the state, letters of credit, surety bonds, or insurance.325 Some of these instruments are more
secure than others. In particular, only letters of credit to the benefit of the state, payable on demand
upon the occurrence of a clearly-defined triggering event, are free of bankruptcy constraints and
readily available should they be needed to protect the public. Surety bonds, properly drafted in
favor of the state interest, can be protective and relatively free of bankruptcy constraints, but are not
quite as protective as letters of credit. Insurance is largely untried for mines of this nature being a
325
While self-bonding is a concept allowed in some states for some situations, the Conservation
Organizations believe that self-bonding should not be available here as it has proven ineffective and
disastrous for protecting the public from failed cleanup, closure, reclamation, monitoring and/or
mitigation at other mines. It is antithetical to common sense that a business will continue to spend
money and reserve assets AFTER the business no longer brings in income. Self-bonding is not and
should not be considered a viable option for financial assurance.
88
relatively new instrument in this field and therefore more risky for the citizens of Minnesota.
Insurance policies and proceeds can also become ensnared in a bankruptcy filing as an asset of the
estate and are therefore more risky and less desirable as financial assurance instruments. This
analysis and these disclosures should be made now for the public to have a full understanding of the
risks and benefits of various financial assurance instruments. The FEIS includes no discussion of
this kind.
17.4.4 Project proponent financial status
The FEIS includes no information or analysis of PolyMets (or PolyMets Canadian parents)
financial status or credit-worthiness other than to disclose that PolyMet in fact has no assets and is
entirely dependent upon its parent company. The FEIS, in connection with information regarding
the amount and type of financial assurance that may be available and required for the PolyMet
project, should disclose the assets and liability of PolyMet and its parent company, both current and
projected through at least the beginning of the mine operation. The disclosures should be
comparable to the disclosure that would be provided a bank for financing as that is essentially what
is being asked of the State of Minnesota; to trust PolyMet to comply with its obligations to the
states and the nations natural resource assets.
17.5
Impacts of air deposition on wetland and stream water quality
In addition to mercury and sulfate, the EIS fails to take the hard look required by NEPA in
assessing and disclosing impacts of other air pollutants, including fugitive dust, on water quality in
wetlands and streams. Furthermore, the EIS excludes dust emissions that result from blasting the
open pits from what little air deposition analysis it did do. Air pollutants at both the plant and mine
site will have high levels of several metals, which will affect water quality both in wetlands and in the
many rivers and streams around the mine and plant sites. While air emissions are mentioned as a
potential source of indirect wetland impacts, the impacts themselves are not discussed and no
mention is made of river and stream impacts. This issue was raised in our comments on the SDEIS
at Friends 23, 58; CBD 15-20, 53-62. Our SDEIS comments are attached to this objection letter,
and the referenced pages along with all cited materials are incorporated herein.
In addition, Dr. Michael Twiss and Dr. Thomas Holsen of Clarkson University conducted an
independent review of the FEIS for us in regard to this issue. Their report includes the following
conclusions:
No scientifically justified support is given for the assertion that there will be no impacts in
areas where deposition is increased by less than 100% of background levels.
The impact of contaminants on waterbodies will not be uniform throughout the year. Much
of the input to surface waters will occur during spring with snowmelt and associated with low
pH waters.
89
The FEIS does not provide information nor assess the impacts of the amount of sulfur or
metals that will be deposited within the greater than 100% of background levels. The amount
>100% should be provided and its impact evaluated.
Other than mercury, the FEIS provides no assessment of impacts on water quality in water
bodies from air deposition of metals such as copper, nickel, and aluminum.326
The Twiss and Holsen report is attached to this letter and incorporated herein.
17.6
Loss of wetland value to the federal estate
The FEIS discloses the change in the number of acres of wetlands in the federal estate (in regard to
acres lost due directly to the land exchange) but it does not assess the change in the value of
wetlands. In treating all wetland acres as the same in terms of value, the FEIS fails to take the hard
look at losses to the federal estate that is required by NEPA. We raised this issue in our comments
on the SDEIS at MCEA 78 and CDB 53 and 130. Our comments are attached to this objection
The lands that will be lost to the federal estate include an area known as One Hundred Mile Swamp.
The One Hundred Mile Swamp is a large wetland of approximately 3,028 acres.327 Much of One
Hundred Mile Swamp consists of mature (80-plus years) black spruce and northern white cedar.328
This type and age of forest provides habitat for rare lichens and plants that are not found
elsewhere.329 The size and remoteness of this resource makes it particularly valuable. The fact that
northern goshawks (a Management Indicator Species) nest there indicates its value as wildlife
habitat. Contrary to the Forest Services emphasis on the lack of access as a negative characteristic,
the fact that the area is relatively unaccessible increases its value as wildlife habitat.
It does not appear that any of the Nonfederal lands contain wetland resources of similar value.330
Although they contain coniferous swamps, they are mostly young and not nearly as large. And
although the Nonfederal lands contain more wetland acreage overall, the additional acreage consists
of shrub swamp,331 which is a ubiquitous ecosystem that has vastly increased over historic conditions
and thus is of lower public value.332
326
Michael Twiss and Thomas Holsen, Independent review of Final Environmental Impact
Statement (FEIS) and supplemental documents that pertain to metal impacts on waters near the
PolyMet mine (Dec. 28, 2015) (attached as expert report).
327
FEIS 4-491,
328
FEIS 4-495.
329
See FEIS App. D, Biological Evaluation 5-22 to -25.
330
See FEIS 4-504 to -529.
331
Compare FEIS 4-496, Table 4.3.3-1, and FEIS 4-511, Table 4.3.3-4.
332
See Michigan Natural Features Inventory, Northern Shrub Thicket (2014), accessed at
http://mnfi.anr.msu.edu/communities/community.cfm?id=10677 on January 1, 2016 (In the
Great Lakes region, northern shrub thicket is a widespread community type that has dramatically
increased in acreage from its historical extent due to anthropogenic disturbance. The increase in
90
Although wetland functions are rated high for both the Federal and the Non-federal lands, this is
not the same as saying that the value of each to the public is equivalent. The FEIS completely fails
to assess the comparative public value of the Federal and Non-federal lands. That comparison is
crucial both to understanding the environmental impacts of the proposed project and land exchange,
and to a reasoned Forest Service decision under governing law.
Finally, the FEIS fails to distinguish between coniferous bogs, a particularly difficult ecosystem to
replace, and other conifer swamps, making a comparison of public value impossible. By combining
coniferous bogs and coniferous swamps on the non-federal parcels, the SDEIS obscures how many
acres of coniferous bogs will be lost to the federal estate due to the land exchange.
Finally, the FEIS fails to disclose that wetlands on lands adjacent to the Federal lands that will
remain in the national forest are predicted to have a high likelihood of hydrological effects.333 It is
unclear if or when these wetland losses will be compensated for by the addition of other wetland
property to the federal estate. These losses must be included in the assessment of impacts to the
federal estate.
18.0
The EIS must include the off-site indirect impacts of this project.
CEQ Regulations state that an EIS must include a consideration of any adverse environmental
effects, including both direct and indirect effects.334 Indirect effects are those which are caused by
the action and are later in time or farther removed in distance, but are still reasonably foreseeable.335
A reasonably foreseeable effect is defined as one which is sufficiently likely to occur that a
person of ordinary prudence would take it into account.336
Federal courts have held that this includes downstream impacts such as the impacts of burning
coal after it has been shipped on a new rail line. The Eighth Circuit applied these definitions to a
proposal to construct new rail lines to the Powder River Coal Basin in Wyoming.337 Since those rail
lines would increase availability of the coal and decrease its price, the Court held that increased coal
northern shrub thicket is the result of extensive logging of swamp forests, alteration of hydrologic
regimes, and fire suppression.) (attached as Exhibit 40a); Michigan Natural Features Inventory,
Muskeg (2014), accessed at http://mnfi.anr.msu.edu/communities/community.cfm?id=10678 on
Jan. 1, 2016 (Anthropogenic disturbance has decreased the extent of peatlands and dramatically
altered many occurrences. Turn-of-the-century logging of tamarack, black spruce, and cedar from
peatland systems favored the conversion of forested peatlands to open, ombrotrophic bogs and
muskegs.) (attached as Exhibit 40b).
333
FEIS 5-285, Fig. 5.2.3-6.
334
40 C.F.R. 1508.8.
335
Id; see also 40 C.F.R. 1508.7.
336
Sierra Club v. Marsh, 976 F.2d 763, 767 (1st Cir. 1992).
337
Mid States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8th Cir. 2003).
91
consumption was a reasonably foreseeable effect of the proposal, such that its environmental impact
must be included in the EIS.338
18.1
The FEIS fails to take a hard look at the impacts of generation of electricity for
this project
The Final EIS does not assess the indirect impacts of burning coal due to its energy demand from
Minnesota Power facilities. This issue was raised in our SDEIS comments at MCEA 7, Friends 17,
71-72, which are attached and incorporated herein.
According to Minnesota Powers most recent Integrated Resource Plan, at present, Minnesota
Power's resource mix includes 75% coal-burning power plants. The utility owns two coal-fired
power plants, Boswell Energy Center (4 units, 926 MW total) and Taconite Harbor Energy Center (2
units, 150 MW total). Minnesota Power also has a long-term power purchase from the Square Butte
Cooperative's coal-fired Milton Young Plant in North Dakota (currently, 100 MW, which purchase
MP plans to phase out by 2026).
These coal-fired power plants emit over 8 million tons of carbon dioxide per year. The plants emit
about 325 lbs of per year of mercury, 7,500 tons per year of nitrogen oxides (NOx), and 7,500 tons
per year of sulfur dioxide (SO2). PolyMet will cause an incremental increase in the emissions of these
pollutants.339 Although the FEIS apparently takes the position that because these emissions are
already permitted, they do not need to be disclosed in an EIS. However, if PolyMet was not
purchasing this power, Minnesota Power would not burn the coal to produce it. These emissions are
thus an indirect impact of the proposed project that must be disclosed according to NEPA
regulations.
Although Minnesota Power expects coal to drop to 33 percent of its resource mix, the timing for
this estimate is uncertain. Because it will be adding natural gas to the mix, its resources will be less
carbon intensive, but certainly not carbon-free.
Importantly, large industrial customers heavily influence Minnesota Powers resource planning:
In 2014, 54 percent of Minnesota Powers kilowatt-hour (kwh) sales served large power
customers, primarily in the taconite mining, iron concentrate, paper, pulp, refining and pipeline
industries...Two additional large power customers expected to be operating soon will also be
receiving energy from Minnesota Power: PolyMet, a nonferrous mining operation awaiting final
permitting, and Essar Steel Minnesota, a major taconite mine and processing plant now under
construction.
338
Id. at 549-550.
Report by Victoria Stamper, Review of Air Quality Impacts Analysis Presented in the November
2015 NorthMet Mining Project Final Environmental Impact Statement 24-25 (Dec. 15, 2015)
(Attached expert report).
339
92
PolyMet is a sufficiently significant customer that it is mentioned by name in the most recent
Integrated Resource Plan. The prospect of PolyMets future energy consumption is already driving
decisions at Minnesota Power, and the Final EIS should analyze those effects.
18.2
The FEIS fails to take a hard look at the transport and disposal of waste.
The Final EIS also fails to address, as did the SDEIS, the safe transport and disposal of materials
generated from the wastewater treatment process. This issue was raised in our SDEIS comments at
--, which are attached and incorporated herein.
A filtered sludge material will be generated from treating contaminated water at the WWTF. In
addition, the pore water from the HRF must be disposed of. The Final EIS calls for disposing of
these waste streams at either an offsite location or at the Hydrometallurgical Residue Facility.
Important information is missing in the Final EIS about what the contents of these wastes are
expected to be, as well as how to ensure the safe transport and containment of them. Whether or
not the waste streams meet the legal definition of hazardous, it is likely that they will be
voluminous and toxic. The Final EIS fails to provide information to properly assess the dangers
these pose to the environment or human health.
18.3
The FEIS fails to take a hard look at the environmental effects of transporting ore
to smelters, smelting or further processing of the copper ore
The increased copper smelting caused by the removal of copper ore at the PolyMet mine is a
reasonably foreseeable impact that should be addressed in the SDEIS. This issue was raised in
MCEAs comments on the SDEIS at MCEA 7 and 98-104.
The chain of causation between the extraction of ore at the proposed site and the smelting of the
resulting product is much less attenuated than the connection between the construction of new rail
lines and coal consumption analyzed by the Eighth Circuit. Copper smelting is clearly certain to
occur; for without it the copper precipitate is worthless as an industrial commodity.
The FEIS states that the NorthMet Project Proposed Action would utilize a beneficiation and
hydrometallurgical processing technology rather than smelting. Copper smelting at a specific
location is not a reasonably foreseeable effect of the NorthMet Project Proposed Action.340 It also
states that The off-site transport and use of the metal concentrates is outside the scope of the
FEIS.341
This response does not meet the requirements of NEPA, as described above. The
Hydrometallurgical Facility may replace smelting if it is effective, but it will not become operational
for 2-4 years after beneficiation begins.342 In the meantime, the copper concentrate produced from
340
FEIS at A-451.
FEIS at A-453.
342
FEIS at 3-109.
341
93
the beneficiation process must be smelted. Moreover, the FEIS states that the hydrometallurgical
processing technology would process nickel concentrates. 343 Based on the FEIS, the
Hydrometallurgical Facility is designed to process nickel concentrate, not copper concentrate. A
plain reading of Figure 3.2-26 shows that only nickel concentrate enters the autoclave, and copper
concentrate must leave the site for further processing, even after the hydrometallurgical facility is
built, contradicting the Response that the hydrometallurgical facility replaces copper smelting.
As detailed in MCEA comments in 2014, simply because the Co-Lead Agencies do not know the
precise location of the copper smelting does not excuse them from analyzing the impacts under
NEPA. An indeterminate location of environmental impacts does not affect their inclusion or
exclusion in an EIS. In Mid States Coaltion for Progress, for example, the court rejected defendants
argument that increased coal consumption was speculative because specific coal plants that would be
built to burn the new coal had not been identified. For NEPA purposes, the court held, it is the
nature of the impact that is important.344 It is certain that some entity will smelt the copper, even if
the exact geographic location is still undetermined. CEQ regulations specifically address indirect
impacts where there is incomplete or unavailable information.345 The agency should evaluate those
impacts to the extent possible, and include a statement of incompleteness.346
Even if the environmental impacts of the copper smelting are primarily borne by Canada, those
extraterritorial effects do not bar their consideration under NEPA. The federal courts note that
NEPA requires agencies to consider reasonably foreseeable transboundary effects resulting from a
major federal action taken within the United States.347 This would include any transboundary
effects from copper smelting taking place outside U.S. jurisdiction.
Moreover, the fact that the location of the smelting is unknown may be the result of willful
ignorance, rather than a lack of available information. According to Polymets NI 43-101, in the first
phase of the NorthMet operation (prior to the construction of the on-site hydrometallurgical facility)
the copper and nickel concentrates will be sold to Glencore International under a long-term
marketing agreement.348 After the second phase processing facility is built, Polymet will also sell the
343
Id.; See also FEIS Figure 3.2-26 on p. 3-111, showing nickel concentrate entering the autoclave,
while copper concentrate enters a copper concentrate filter in a different stream, and copper
product exits from the copper concentrate storage, while nickel/cobalt concentrate exits several
steps after the autoclave.
344
Mid States Coalition for Progress, 345 F.3d. at 549
345
40 C.F.R. 1502.22.
346
Id.
347
Government of the Province of Manitoba v. Salazar, 691 F. Supp. 2d 37, 51 (D.D.C. 2010) (requiring
agency to analyze environmental effects in Canada of a project carried out in the U.S.); Swinomish
Tribal Community v. Federal Energy Regulatory Commission, 627 F.2d 499, 511 (D.C. Cir. 1980) (finding it
entirely appropriate that an EIS for a proposal to heighten a dam in Washington State specifically
addressed the Canadian effects of the proposal).
348
Polymet Mining, Updated NI 43-101 Technical Report on the NorthMet Deposit 1.5 (p. 1-8)
(Jan. 14, 2013) (attached as Exhibit 3c).
94
nickel-cobalt hydroxide and precious metals precipitate produced by that facility to Glencore. 349 In
fact, the 2008 long-term marketing agreement specifies that Glencore will purchase all of Polymets
products (metals, concentrates or intermediate products) on independent commercial terms at the
time of the sale. Glencore will take possession of the products at site and be responsible for
transportation and ultimate sale.350 After publication of the NI 43-101, Glencore International
merged with Xstrata PLC to become Glencore Xstrata PLC.351
Glencore Xstrata owns a copper smelting operation in Sudbury, Ontario called Sudbury Integrated
Nickel Operations, with the capacity to smelt 95,000 tons of nickel and copper concentrates,352 and
the Horne Smelter in Quebec, Canada, which produced 194,000 tons of copper anodes in 2012.353
Therefore, the best approach is for the Co-Lead Agencies to simply ask Glencore where it intends to
process the materials. If there is a sound and supported reason why Glencore cannot specify the
location of smelting, then it does not excuse the Co-Lead Agencies from analyzing the impacts, but
it does allow them to analyze the impacts of smelting at a more general level, along with a statement
as to what information is incomplete or unavailable consistent with Minn. R. 4410.2500 and If
Glencore can specify the likely location where some or all of the ore would be smelted, then the
FEIS must analyze those location-specific impacts. MCEAs SDEIS comments describe some of
those impacts on pages 100-105, providing a helpful description of the type of impacts from
smelting that must be considered.
In addition, the FEIS should analyze the potential impacts of additional transportation of the copper
and nickel concentrates to smelters.354 The FEIS discusses transportation of hazardous materials
primarily diesel fuel and PAX but does not discuss transportation of the final product. The FEIS
should address potential transportation modes (rail, truck, freighter) as well as potential routes over
land and water.
The transportation of ore may generate air pollution, among other risks. The impacts associated
with the transport of ore are prime examples of indirect effects that NEPA requires be
considered.355
While the Conservation Organizations acknowledge that there is some uncertainty as to the final
destination of the processed material, the final products will be the property of Glencore by
contract, and an inquiry of Glencore as to the likely destination should be part of the analysis.
Moreover, Glencore owns other mining assets in North America, as well as smelting facilities.
349
Id.
Id. at 19.3 (p. 19-1).
351
See Diana Kinch, Glencore-Xstrata Merger Complete, The Wall Street Journal, May 2, 2013
(attached as Exhibit 15b to MCEAs SDEIS comments).
352
Sudbury Integrated Nickel Operations (attached as Exhibit 15c to MCEAs SDEIS comments).
353
Xstrata, 2012 Annual Report at 20 (attached as Exhibit 15d to MCEAs SDEIS comments).
354
Mid States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8th Cir. 2003).
355
South Fork Band Council of Western Shoshone of Nevada v. U.S. Dept. of Interior, 588 F.3d 718, 725 (9th
Cir. 2009).
350
95
Glencore also owns warehousing and port facilities in North America.356 Glencore advertises that
we have a sizeable custom smelting and refining capacity.357 Glencores vertical integration of
shipping and processing narrows down the potential routes and destinations considerably.
At a minimum, where information about a potential environmental impact is incomplete and cannot
be obtained, the RGU must include, by law, the following information in the EIS:
A.
A statement that the information is incomplete or unavailable and a brief explanation

of why it is lacking;
B.
An explanation of the relevance of the lacking information to evaluation of

potentially significant environmental impacts and their mitigation and to a reasoned
choice among alternatives;A brief summary of existing credible scientific evidence
that is relevant to evaluating the potential significant environmental impacts; and
C.
The RGUs evaluation of such impacts from the project and its alternatives based
upon theoretical approaches or research methods generally accepted in the scientific
community.358
Copper ore contains, obviously, copper, which is toxic to aquatic life, but also arsenic, cadmium,
selenium and other toxic heavy metals discussed in Section 15.2.6, above. Thus, a spill or accident
involving metal precipitates could be harmful to human health and aquatic life.
19.0
The EIS fails to adequately assess impacts to federally listed species, and fails to
demonstrate compliance with the Endangered Species Act
As acknowledged in the FEIS, the NorthMet mine would impact three federally listed species: the
Canada lynx, gray wolf, and northern long-eared bat.359 The mine would result in the long-term
destruction of two square miles (1454 acres) of designated critical habitat for the Canada lynx and
gray wolf.360 The project may also kill lynx and wolves as result of the significant vehicle traffic
within the Mine Site, and the significant vehicle and railroad traffic between the Mine and Plants
Sites.361 The project would also impact two of the thirteen remaining wildlife corridors that allow
wildlife migration (including for lynx and wolves) from northwest to southeast of the Mesabi Iron
Range.362 Moreover, the project would destroy habitat that may be used by the northern long-eared
bat at the Mine Site, and would also disrupt the bats use of the Plant Site.363 Due to the significance
356
See Glencore, Xstrata Operations map (attached as exhibit 18b).

Glencore, Metals and Minerals, accessed at: http://www.glencore.com/who-we-are/what-wedo/metals-and-minerals/ on Jan. 2, 2016 (attached as Exhibit 18c).
358
Minn. R. 4410.2500.
359
FEIS at 5-433.
360
FEIS at 5-434, 5-437.
361
Id. at 5-436, 5-437.
362
Id. at 6-77.
363
Id. at 5-438.
357
96
of impacts to these three threatened species that would result from the proposed mine, the FEIS is
inadequate in assessing and disclosing the direct, indirect, and cumulative impacts, and fails to
demonstrate compliance with the Endangered Species Act (ESA).364
The ESA represents the most comprehensive legislation for the preservation of endangered
species ever enacted by any nation.365 Congress enacted this statute to halt and reverse the trend
towards species extinction, whatever the cost.366 In enacting the ESA, Congress spoke in the
plainest of words, making it abundantly clear that the balance has been struck in affording
endangered species the highest of priorities, thereby adopting a policy which it described as
institutionalized caution.367
As the court in Tennessee Valley Authority observed,
One would be hard pressed to find a statutory provision whose terms were any plainer than
those in [Section] 7 of the Endangered Species Act. Its very words affirmatively command all
federal agencies to insure that actions authorized, funded, or carried out by them do not jeopardize
the continued existence of an endangered species or result in the destruction or modification
of habitat of such species... This language admits of no exception.368
Section 7 of the ESA mandates that federal agencies take no action that will result in the
destruction or adverse modification of designated critical habitat.369 Destruction or adverse
modification of critical habitat is defined as a direct or indirect alteration that appreciably
diminishes the value of the critical habitat for both the survival and recovery of a listed species. Such
alterations include, but are not limited to, alterations adversely modifying any of those physical or
biological features that were the basis for determining the habitat to be critical.370
The courts have found that this regulatory definition reads the recovery goal out of the statutory
adverse modification inquiry, and that agencies must in fact consider impacts that appreciably
diminish the value of critical habitat for either survival or recovery.371 Thus, the agencies assessment
of the impacts of a proposed action on a listed species critical habitat must address the projects
potential impact on the species habitat in terms of the species recovery as well as its survival. In
364
This issue was raised in comments on the SDEIS at MCEA 109-112; Friends 59-60; CBD 66,
which are attached and incorporated herein.
365
Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978).
366
Id. at 184.
367
Id. at 194.
368
Id. at 173 (quoting 16 U.S.C. 1536) (emphasis in original).
369
National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917, 933 (9th Cir. 2007),
quoting 16 U.S.C. 1536(a)(2).
370
50 C.F.R. 402.02.
371
National Wildlife Federation, 524 F.3d at 934; Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service,
378 F.3d 1059, 1069-71 (9th Cir. 2004).
97
addition, agencies are not allowed to characterize as insignificant the potential impacts on a
species critical habitat by considering only the broad scale or long-term impacts.372
The NorthMet Mine Site is within designated critical habitat for the Canada lynx and gray wolf, and
signs of lynx and wolves have been observed near and at the Mine Site.373 The proposed mine would
reduce suitable habitat for lynx and wolves, and fragment their remaining habitat.374 Significantly, the
proposed mine would destroy two square miles (1454 acres) of critical habitat for lynx and wolves
for at least 40 years.375 Moreover, the mine would further affect lynx and wolf critical habitat through
impacts to two of the remaining wildlife corridors in this region.376 Because the proposed mine
would result in the destruction and adverse modification of critical habitat for both the Canada lynx
and gray wolf, the project violates Section 7 of the ESA and cannot proceed.377
In addition to the direct impacts on lynx and wolf habitat at the Mine Site, an average of 2,066 miles
per day of vehicular traffic is expected within the site, with an additional 1,734 miles of traffic each
day between the Mine Site and Plant Site.378 This does not include additional highway traffic from
workers driving to and from work, or truck traffic delivering supplies. The agencies acknowledge
that increased vehicle and train traffic could further affect lynx and wolves, including through
vehicle collisions.379
The consideration and disclosure of cumulative impacts to lynx and wolves in the FEIS is also
inadequate, including the cumulative impacts to the few remaining travel corridors in the region.
There have been two studies of the few remaining wildlife corridors through the Mesabi Iron Range
and Arrowhead Region. In 2006, Emmons and Olivier Resources prepared for the DNR,
Cumulative Effects Analysis on Wildlife Habitat Loss/Fragmentation and Wildlife Travel Corridor
Obstruction/Landscape Barriers in the Mesabi Iron Range and Arrowhead Regions of Minnesota.380 As stated by
Emmons & Olivier, wildlife travel through this region is restricted because of the extensive change
to the landscape, including large mine pits, stockpiles, mining infrastructure, regional development
associated with the Mesabi Iron Range, and highways.381 Emmons & Olivier identified only 13
remaining wildlife corridors across the 100 mile Mesabi Iron Range.382 Moreover, Emmons &
Olivier found that any future losses of these relatively small remaining corridors may be considered
significant.383 Additionally, due to cumulative effects of past habitat losses in this region for
372
National Wildlife Federation, 524 F.3d at 935; Gifford Pinchot, 378 F.3d at 1069.
FEIS at 4-234 - 4-237.
374
Id.
375
Id. at 5-434, 5-437.
376
Id. at 6-77.
377
16 U.S.C. 1536 (a)(2); Tennessee Valley Authority v. Hill, 437 U.S. 153.
378
FEIS at 5-436.
379
Id. at 5-436, 5-437.
380
FEIS Reference Emmons & Olivier 2006.
381
Id. at 2.
382
Id. at 51.
383
Id.
373
98
mammalian species of greatest conservation need, Emmons & Olivier determined that any future
losses to the habitat requirements for these species could be considered significant.384
The second study is entitled, Cumulative Effects Analysis of Wildlife Habitat and Threatened and
Endangered Wildlife Species, Keetac Expansion Project, prepared by Barr Engineering in 2009.385 The Barr
Report states that mining features already cover 118,314 acres along the Iron Range, including
36,962 acres of open pit mines, 78,620 acres of stockpiles and tailings basins, and 212 acres of
facilities and infrastructure.386 The cumulative impacts of 125 years of mining in this region has
fragmented habitat and resulted in a loss of wildlife travel corridors.387 It is feasible that in the
future, mining in the Iron Range could potentially culminate in a 100-mile long landscape barrier
that severs wildlife travel corridors, which may have impacts on dispersal, migration, and/or
seasonal movements of many species.388
The Barr Report identified 18 remaining wildlife corridors.389 Of the 18, the Barr Report predicts
that four will likely become completely impassable within the next 25-30 years as a result of
planned mining activities, and an additional four corridors will retain some functionality, but will
be significantly degraded by future mining plans.390 In addition, [a]s wildlife are increasingly
exposed to mining activity, roads, and urban centers due to the degradation of available corridors,
the incidence of wildlife mortality within the corridors is likely to increase.391 Due to insufficient
data, however, the Barr Report was unable to determine whether wide-ranging mammals such as
lynx and wolves would be sensitive to these cumulative effects.392
As briefly summarized in the FEIS, there are 13 wildlife travel corridors that remain along the
Mesabi Iron Range, ranging from less than 0.1 mile to over 3.2 miles wide.393 Of the 13 large
mammal wildlife crossing corridors . . . two are in the vicinity of the Mine Site or Plant Site.394 The
first is located just a mile from the Plant Site, and the second is located just a half mile from the
proposed Mine Site.395 Operations at the Mine Site would indirectly affect the corridor by reducing
its size and acting as a source of noise and activity near the large habitat block southeast of the
corridor.396 Additionally, the proposed mines transportation and utility corridor between the Mine
Site and Plant Site runs parallel to wildlife corridors and would further affect wildlife use.397
384
Id. at 52.
FEIS Reference Barr 2009a.
386
Id. at 4.
387
Id.
388
Id.
389
Id. at 51.
390
Id. at 56.
391
Id.
392
Id.
393
FEIS at 6-74.
394
Id. at 6-77.
395
Id.
396
Id.
397
Id.
385
99
Moreover, other reasonably foreseeable projects are anticipated to adversely affect the remaining
wildlife travel corridors in the region, including the complete loss of some of the corridors.398 These
effects may include blocking or encroachment into the mapped wildlife corridors, which affects
adjacent habitat that may make the corridor less valuable to wildlife, and increasing traffic along new
or existing roads through the corridor.399 The effects on these corridors include complete loss (depending
upon final extent of activities), habitat isolation, fragmentation, and/or minimal effect.400
The proposed mines direct and long-term destruction of two square miles of designated lynx and
wolf critical habitat, along with the mines adverse and cumulative impacts to the few remaining
travel corridors for lynx and wolves, would result in the destruction or adverse modification of
critical habitat, which is prohibited by the ESA.401 The conversion of the critical habitat at the Mine
Site to an open-pit mine would destroy and adversely modify all of the primary constituent elements
for Canada lynx and gray wolves identified by the U.S. Fish and Wildlife Service, including for lynx
the destruction of boreal forest landscapes that support a mosaic of forest stages, sites for denning,
and matrix habitat allowing for travel and habitat connectivity.402
Additionally, despite the acknowledged significant impacts to lynx and wolves, and their designated
critical habitat, including impacts to the few remaining wildlife travel corridors in the region, the
FEIS fails to consider or address the impacts of the proposed mine and land exchange on lynx and
wolf recovery. By adding to the widespread cumulative impacts of mining projects and other
development across this region, including contributing to the continuing decrease in available travel
corridors, the proposed mine project is likely to appreciably contribute to the diminishment of the
chances for the lynx and wolf populations in this region to recover, and to be eventually taken off
the list of threatened species. The FEISs failure to consider this fundamentally important factor
concerning lynx and wolves violates NEPA and the ESA.
Section 9 of the ESA prohibits any person from taking a threatened or endangered species.403
Take" is defined broadly to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct."404 The proposed mine would likely result in
the take of Canada lynx and wolves, through the destruction of their critical habitat, vehicle and
train collisions, and the continued loss and fragmentation of the few remaining wildlife corridors in
the area.
398
FEIS at 6-77, Table 6.2.5-1.

Id. at 6-77.
400
Id. (emphasis added); see Id. at Table 6.2.5-1 (describing impacts to each of the corridors, including
the overall loss of one corridor due to Essar Steel, the complete loss of a corridor due to U.S. Steel
Keetac, the direct loss of a corridor due to U.S. Steel Minntac, and considerable habitat loss,
fragmentation and isolation to other corridors caused by traffic and development).
401
16 U.S.C. 1536(a)(2).
402
See 74 Fed. Reg. 8616, 8638 (Feb. 25, 2009) (Final Rule designating Canada lynx critical habitat).
403
16 U.S.C. 1538(a)(1)(B); 50 C.F.R. 17.31(a); Animal Protection Institute v. Holsten, 541 F.Supp. 2d
1073, 1076 (D. Minn. 2008).
404
Animal Protection Institute, 541 F.Supp. 2d at 1076, quoting 16 U.S.C. 1532 (19).
399
100
20.0
The EIS must disclose the impacts of the proposed action on moose
The EIS fails to provide the hard look at impacts on moose that is required by NEPA. This issue
was raised on our comments on the SDEIS.405 Our SDEIS comments are attached to this objection
This issue was not addressed in the FEIS Response to Comments. Although the FEIS has added a
small amount of information on moose, it neither includes the factors that we raised in our
comments nor explains why they are not included, in violation of 40 C.F.R. 1503.4(a) (agency must
consider and respond to comments) and 40 C.F.R. 1502.9(b) (agency must discuss in FEIS any
responsible opposing view, and shall indicate the agencys response to the issues raised). For
instance, the FEIS fails to assess the projects impact on moose due to vehicle and train collisions
and the increase in noise and human activity, which were raised in our comments on the SDEIS and
supported by scientific literature.
The FEIS discloses that 2,785.9 acres of moose habitat would be directly affected by the project, but
fails to discuss either indirect impacts on habitat or the actual effects on moose.406 This includes
significant impacts to high quality wetlands, which habitat is particularly important to moose due to
ongoing and future climate change. In fact, the 2009 Report to the DNR by the Minnesota Moose
Advisory Committee recommended the enhancement of the availability of wetlands and other
habitats where moose are most secure from heat stress.407 The impacts of the proposed mine on
heat stress and thermal refugia for moose, however, are not considered or disclosed. More
generally, the FEIS fails to assess the impacts to moose and other species dependent on wetland
habitat in the context of the current and anticipated impacts of climate change, which will cause the
disappearance of wetlands, higher temperatures, increased evapotranspiration, and longer droughts
over the same time period of the proposed mine and its impacts.408
As recognized by the CEQ, [c]limate change is a fundamental environmental issue, and the relation
of Federal actions to it falls squarely within NEPAs focus.409 Agencies must consider not only a
proposed actions effects on climate change, but also the implications of climate change for the
environmental effects of a proposed action.410 Federal agencies, to remain consistent with NEPA,
405
Friends 62, CBD 69-71.

FEIS 5-439.
407
Rolf Peterson et al., Report to the Minnesota Department of Natural Resources by the Moose
Advisory Committee ii and 6 (Aug. 18, 2009) (Moose habitat management should accommodate
the need for aquatic feeding areas and thermal refugia) (attached as Exhibit 20a).
408
Id. at 4 (Figure 3).
409
79 Fed. Reg. 77802, 77823 (Dec. 24, 2014). While the CEQ guidance is still in draft form, it does
not create any new regulatory requirements but rather seeks to facilitate compliance with existing
legal requirements under NEPA. Id. at 77816, 77823.
410
Id. at 77824.
406
101
should . . . take into account the ways in which a changing climate over the life of the proposed
project may alter the overall environmental implications of such actions.411
The impacts of climate change are already occurring, are predicted to intensify, and are directly
related to the environmental consequences of the proposed NorthMet mine on the states sensitive
and declining moose population. As recognized by the Moose Advisory Committee, climate change
is a long-term threat to the persistence of moose in Minnesota.412 Moreover, large bodied
mammals, such as moose [a]re more likely to rapidly respond to climate change, which indicates a
higher extinction risk.413 As a result of climate change, [m]oose will lose crucial habitat, experience
heat stress and malnutrition, and come into contact with more pathogens and winter ticks as a result
of warmer, wetter winters and springs, a reduction in show depth, and hotter summers.414
Moreover, boreal species on which moose rely are expected to decline, and forested wetlands an
incredibly valuable type of habitat for moose will likely disappear.415 The adverse impacts of
losing over 2,700 acres of important moose habitat as result of the proposed mine simply cannot be
considered in isolation of the significant, recognized threats to moose and its habitat in the region
resulting from current and predicted climate change.
Furthermore, NEPA does not allow the agencies to fail to address the combined impacts of climate
change and the proposed mine on moose just because the exact rate and extent of climate change
remains uncertain. NEPA instead requires agencies to engage in reasonable forecasting when
preparing EISs, as speculation is implicit in NEPA.416 As stated by the Eighth Circuit, when the
nature of the effect is reasonably foreseeable but its extent is not, . . . the agency may not simply
ignore the effect.417 Moreover, as recognized by CEQ, agencies should describe the region that
would be affected by a proposal based on available climate change information, including
observations, interpretative assessments, predictive modeling, scenarios, and other empirical
evidence.418 And despite remaining uncertainties, CEQ emphasized that a NEPA analysis should
present a reasonably thorough discussion of probable environmental consequences.419
411
Id. at 77825. See also id. at 77813 (Agencies should consider the specific effects of the proposed
action and the nexus of those effects with projected climate change effects on the same aspects of
our environment).
412
Exhibit 20a at ii.
413
Center for Biological Diversity and Honor the Earth, Petition to List the U.S. Population of
Northwestern Moose Under the Endangered Species Act 25 (July 9, 2015) (attached as Exhibit 20b).
414
Id.
415
Id. at 26.
416
N. Plains Res. Council v. Surface Transp. Bd., 668 F.3d 1067, 1079 (9th Cir. 2011). See also Foundation
on Economic Trends v. Heckler, 756 F.2d 143, 160 (D.C. Cir. 1985) (recognizing that the complexity
and uncertainty of the issues do not diminish an agencys responsibilities under NEPA).
417
Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520, 549 (8th Cir. 2003) (emphasis in
original).
418
79 Fed. Reg. at 77828.
419
Id. at 77803; see also id. at 77817 (noting that agencies should use current scientific information
in assessing climate change effects).
102
The agencies failure to consider the implications and impacts of climate change along with the
proposed NorthMet mine project on the declining moose population is especially egregious due to
the very long-term duration of the proposed mine, and its severe impacts on wetlands and other
habitat needs of moose. As highlighted by CEQ, climate change effects should be considered in the
analysis of projects that are designed for long-term utility and involve resources considered
vulnerable to specific effects of climate change within the timeframe of the proposed projects
anticipated useful life.420 Overall, the agencies failure to consider and disclose in the FEIS the
combined impacts of climate change and the proposed mine on moose habitat and the remaining
declining population violates NEPA.421
The FEIS also fails to inform the reader of the actual situation regarding moose in Minnesota and
the potential impact of this and other projects on moose recovery in the Midwestern United States.
Much of this information is provided in a petition to the U.S. Fish and Wildlife Service for federal
Endangered Species Act listing of alces alces andersoni, the subspecies of moose found in the
Midwest.422 In addition, we are including the report from the MDNRs 2015 aerial moose survey.423
These documents are in addition to the material submitted with comments to the SDEIS, which are
again included with this submission.
Moose, which have been observed in the project area,424 are listed by the state as a species of special
concern.425 The DNR and Forest Service have been well aware for years that the moose population
in the state and on the Superior National Forest is in precipitous decline, a fact that cannot be
discerned from the NorthMet FEIS. The FEIS discussion of this issue is a classic example of
providing only data that tends to discount the problem in the eye of the reader. What the FEIS tells
us is:
The overall moose population declined approximately 35 percent from 2012 to 2013. The
2014 winter aerial moose survey estimated the population at 4,350 animals, up from the 2013
estimate of 2,760. However, this is likely due to variability in the survey conditions from year
to year and uncertainty inherent in the survey itself. 426
The reader is left with the idea that perhaps the 35 percent change from 2012 to 2013 was an
anomaly due to counting methods, and with no understanding as to the actual situation.
420
79 Fed. Reg. at 77813.

Native Village of Point Hope v. Jewell, 740 F.3d 489, 493-95 (9th Cir. 2014) (NEPA requires agencies
to consider every significant aspect of a proposal, and a decision is arbitrary if it failed to
consider an important aspect of the problem).
422
Exhibit 20b
423
Glenn D. DelGiudice, 2015 Aerial Moose Survey (attached as Exhibit 20c).
424
FEIS at 4-237
425
A species of special concern is defined as a species that is extremely uncommon in Minnesota,
or has unique or highly specific habitat requirements and deserves careful monitoring of its status.
Minn. Stat. 84.0895, Subd. 3.
426
FEIS at 4-237.
421
103
According to the MDNR, the population estimate for moose in the state was 8,840 in 2006, and in
2015 is estimated at 3,450.427 While the count did go up in 2014, the trend over a ten-year period is a
decline of more than 60 percent.
The FEIS also fails to recognize the critical importance of northeastern Minnesota for the remaining
moose population in the state. Moose also used to be common in northwestern Minnesota, but that
population has disappeared over the last twenty years. From a population of 4,000, fewer than 100
remain, with any rebound seen as very unlikely. This leaves northeastern Minnesota, including the
Proposed Project area, as the only remaining refuge for the states declining moose population.
To summarize, the Minnesota moose population is undergoing a rapid decline and may be extirpated
from the state of Minnesota within another decade; habitat loss and fragmentation is acknowledged
to be a factor in that decline; it is acknowledged that this project will result in a loss of habitat; and
with no further information, the FEIS concludes that the project would likely not affect moose at
the population level. NEPA prohibits agencies from making such sweeping general statements
without providing supporting data or analysis.428
As noted below, the FEIS analysis of the potential impacts to moose is even more deficient and
problematic in the cumulative impacts analysis, where moose are not even mentioned. Overall, the
FEIS has failed to meaningfully consider and disclose the impacts of the proposed mine on the
states dramatically declining moose population. The omission of any meaningful consideration of
such an important issue precludes the type of informed decisionmaking mandated by NEPA.429
21.0
The cumulative effects analysis in the FEIS is inadequate
NEPA and MEPA both require an analysis of the potential cumulative impacts of a proposed
action.430 The NEPA regulations provide the following definition for cumulative impacts:
Cumulative impact is the impact on the environment which results from the incremental
impact of the action when added to other past, present, and reasonably foreseeable future
actions regardless of what agency (Federal or non-Federal) or person undertakes such other
actions. Cumulative impacts can result from individually minor but collectively significant
actions taking place over a period of time.431
In order to properly consider cumulative effects in an EIS, NEPA requires quantified and detailed
information.432 Without such information, neither the courts nor the public, in reviewing the
[agencys] decisions, can be assured that the [agency] provided the hard look that it is required to
427
Exhibit 20c at 2
Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1150 (9th Cir. 1998); 40 C.F.R. 1502.24.
429
Foundation for North Am. Wild Sheep v. U.S. Dept. of Agriculture, 681 F.2d 1172, 1178 (9th Cir. 1982).
430
See e.g., 40 C.F.R. 1508.25(c); Minn. R. 4410.1700, subp. 7(B).
431
40 C.F.R. 1508.7.
432
Neighbors of Cuddy Mountain v. U.S. Forest Service, 137 F.3d 1372, 1379 (9th Cir. 1998).
428
104
provide.433 General statements about possible effects and some risk do not constitute a hard
look absent a justification regarding why more definitive information could not be provided.434
Nor is it appropriate to defer consideration of cumulative impacts to a future date,435 as NEPA
requires consideration of the potential impact of an action before the action takes place.436
As explained throughout these comments, the FEIS cumulative impacts analysis for a number of
resources including but not limited to water quality, wetlands, and wildlife - is inadequate and fails
to comply with NEPA or MEPA. We raised this issue in our comments on the SDEIS at NPCA 23, VNPA 2-3. The SDEIS comments of MCEA, Friends, and CBD are attached and incorporated
herein. The FEIS provides only general, mostly non-quantified analysis, which falls far short of the
detail required. In Great Basin Mine Watch v. Hankins,437 the court struck down an agencys reliance
on generalized descriptions of mining impacts in a region, and instead required the agency to include
mine-specific cumulative data.438 The court highlighted the need for a quantified assessment
of [other projects] combined environmental impacts and an objective quantification of the
impacts.439 The FEIS for the proposed PolyMet mine fails to provide this necessary analysis.
In addition to providing primarily general, non-quantified analysis, the FEIS makes a number of
fundamental mistakes in its cumulative impacts analysis. The FEIS, for instance, in its assessment of
past, present, and reasonably foreseeable actions, the agencies failed to include the hundreds of
exploratory drilling projects taking place in the same region on federal, state, and private lands.440
The fact that these exploratory drilling projects will collectively contribute towards significant
cumulative impacts on a number of resources is acknowledged by the Forest Service in the forestwide EIS that it prepared for only a subset of these past, present, and reasonably foreseeable
projects.
The FEIS also limited its consideration of reasonably foreseeable future actions to only those that
are included in approved planning documents and have approved funding, are permitted, or have a
currently active federal or state permit or site plan application under review. 441 This definition of
reasonably foreseeable actions is unreasonably narrow and violates NEPA. The United States Court
of Appeals for the Eighth Circuit has more broadly held that an environmental effect is reasonably
foreseeable under NEPA if it sufficiently likely to occur that a person of ordinary prudence would
433
Id.
Id. at 1380.
435
Id.
436
40 C.F.R. 1500.1(b).
437
456 F.3d 955, 971-974 (9th Cir. 2006).
438
Id. at 973.
439
Id. at 972.
440
See e.g., FEIS at 6-20, 6-21 (confirming that Rio Tinto, Teck, and Encampment Minerals mineral
exploration projects were not considered in the cumulative impacts analysis).
441
FEIS at 6-2; FEIS at A-354.
434
105
take it into account in reaching a decision.442 Moreover, when the nature of the effect is reasonably
foreseeable but its extent is not, . . . the agency may not simply ignore the effect.443
The lead agencies claim that they relied on 1997 CEQ and 1999 EPA guidance in preparing the
cumulative impacts analysis.444 The CEQ guidance, however, demonstrates that the approach taken
by the agencies in the FEIS is impermissibly narrow and violates NEPA. As explained by CEQ:
Commonly, analysts only include those plans for actions which are funded or for which other
NEPA analysis is being prepared. This approach does not meet the letter or intent of CEQs
regulations. It underestimates the number of future projects, because many viable actions may be in
the early planning stage.445
Agency must instead use the best available information to develop scenarios that predict which
future actions might reasonably be expected as a result of the proposal.446 Similarly, [i]f the analyst
is uncertain whether to include future actions, it may be appropriate to bound the problem by
developing several scenarios with different assumptions about future actions.447 Future actions can
only be excluded from the cumulative impacts analysis if the action is outside the established
geographic boundaries or time frame, the action would not affect any resources, or the agency can
show that including the action would be arbitrary.448 Importantly, CEQ makes clear that reasonable
forecasting is implicit in NEPA, and therefore it is the responsibility of federal agencies to predict
the environmental effects of proposed actions before they are fully known.449
EPAs 1999 guidance further demonstrates that the agencies definition of reasonably foreseeable
actions in the NorthMet FEIS is too restrictive and violates NEPA. As explained by EPA,
reasonably foreseeable future actions need to be considered even if they are not specific
proposals.450 As with CEQ, EPA directs agencies to utilize the best available information to
develop scenarios that predict which future actions might reasonably be expected as a result of the
proposal.451
442
Mid States Coalition for Progress v. Surface Transp. Bd., 345 F.3d 520, 549 (8th Cir 2003).
443
Id. (emphasis in original); see also 40 C.F.R. 1502.22; Northern Plains Res. Council v. Surface Transp.
Bd., 668 F.3d 1067, 1078-79 (9th Cir. 2011) (projects need not be finalized before they are
reasonably foreseeable, as NEPA requires that an EIS engage in reasonable forecasting, and
speculation is implicit in NEPA).
444
FEIS at 6-1.
445
U.S. CEQ, Considering Cumulative Effects Under the National Environmental Policy Act, 19
(1997) (attached as Exhibit 21e).
446
Id.
447
Id.
448
Id.
449
Id.
450
U.S. EPA, Consideration of Cumulative Impacts in EPA Review of NEPA Documents Part
4.3 (1999) (attached as Exhibit 21f).
451
Id.
106
The NEPA requirement, as explained by CEQ, EPA, and the courts, to use reasonable forecasting
and to develop scenarios that predict and disclose the environmental consequences of future actions,
along with the NorthMet proposal and other past and present actions, is particularly important for
the NorthMet proposal due to its extremely long time-frame. The lead agencies recognize in the
FEIS that the necessary maintenance, mitigation, and monitoring for the NorthMet mine will be
required indefinitely, likely for hundreds of years. In light of the lead agencies current understanding
of the copper, nickel and other mineral deposits within the Duluth Complex, along with the
expressed interest of mining companies from across the globe to access and mine these minerals, it
is at least reasonably foreseeable to anticipate additional mining proposals during this time frame.
In fact, it is arbitrary and unreasonable for the agencies to assume that no additional copper nickel
mines will be proposed and considered during the hundreds of years of mining activities that the
agencies are considering authorizing for PolyMets NorthMet mine. The lead agencies must
therefore consider a range of development scenarios that meaningfully assess and disclose what the
cumulative impacts would be to the various resources of the region under each of these scenarios.
Because the FEIS fails to do so, a Supplemental EIS must be prepared.
The agencies unlawfully narrow definition of reasonably foreseeable future actions led the agencies
to exclude the proposed Twin Metals copper-nickel mine from the FEIS cumulative impacts
analysis.452 From its 8,800 square-foot headquarters in Ely that was constructed in 2011, to its past,
ongoing, and proposed exploration throughout the region, and its proposed hydro-geologic study,
along with the ongoing consideration of the environmental impacts of its proposed lease renewals
by the BLM, the Twin Metals proposal and its environmental impacts are far beyond speculative,
and are instead ongoing or at least reasonably foreseeable.
Significantly, in 2014 Twin Metals completed a voluminous Technical Report on Pre-feasibility
Study (PFS), which was prepared by a large team of engineers and describes in detail where the
company plans to mine, the characteristics of the mine site, the mineral reserve estimates, the
proposed mine plan, the mining methods, the recovery methods, the project infrastructure, and,
environmental protection strategies, and environmental concerns and issues.453 The Twin Metals
proposal includes a 30-year mine plan focused on the development of the Maturi and Maturi SW
mineral deposits, located about 9 miles southeast of Ely and 11 miles northeast of Babbitt. The PFS
estimates an average production rate of 50,000 tons of mineralized ore per day. The mine plan
consists of four major facilities: an underground mine site, a concentrator site, a tailings basin
facility, and utility corridors.
The Twin Metals PFS demonstrates that there will undoubtedly be significant cumulative impacts to
numerous resources that would also be affected by the NorthMet project, as Twin Metals proposes
to place its massive tailings facility in the same St. Louis River watershed, adjacent to the Peter
Mitchell Mine. The agencies have entirely failed to consider or disclose in the NorthMet FEIS the
major impacts and issues concerning geology, hydrology, groundwater, surface water, wetlands, and
452
MCEA 115-126; Friends 31-32, 71; CBD 76-80.

Twin Metals Minnesota Project, NI 43-101: Technical Report on Pre-feasibility Study (2014)
453
107
pollution that would result from the interactions and cumulative impacts of the NorthMet mine site,
Peter Mitchell mine pit, and Twin Metals tailings basin in the same general location. Without such
an analysis, that also takes into account the existing changes and predicted impacts to the Laurentian
Divide, the agencies are wholly unable to predict or disclose the extent of pollution that would flow
to the St. Louis River and Boundary Waters watersheds.
According to Twin Metals, the details from the PFS will form a Mine Plan of Operations (MPO)
that will be submitted to state and federal regulatory agencies for environmental review.454 Twin
Metals further states that it has been conducting environmental studies and assessments of its mine
proposal for more than five years, which will continue during the development of its Mine Plan of
Operations, and will feed into the formal, Draft Environmental Impact Study (DEIS) that will be
conducted by state and federal agencies. Key environmental issues include: surface water quality and
hydrology, threatened and endangered species, air quality, plant life, wetlands and socioeconomic
factors.455 And [m]ore than $250 million has been invested in exploration and project
development to date.456 In sum, there is no question that the Twin Metals proposed mine is not
speculative, but rather reasonably foreseeable, and was required by NEPA and MEPA to be
included in the cumulative impacts assessment for NorthMet FEIS.
In fact, in March of 2013, the Minnesota Minerals Coordinating Committee, which includes the
DNR, issued a document entitled Explore Minnesota: Copper, Nickel PGEs.457 The document
stated that PolyMet, Twin Metals, and Teck American were all active copper-nickel projects at that
time. Moreover, the document referred to the Twin Metals PFS, which was then underway,
acknowledged that the PFS will be comprehensive and evaluate all project details, and then
stated: Once completed, the PFS will provide multiple state and federal agencies the information
needed to conduct a rigorous and thorough environmental review of the proposed plan. Now that
the PFS is complete, and provides the agencies with hundreds of pages concerning the proposed
mines specific details and impacts, the lead agencies still refuse to include Twin Metals in the
cumulative impacts analysis for the NorthMet proposal, in plain violation of MEPA and NEPA.
Considering additional future proposals, including Twin Metals, is further supported by the
definition of cumulative potential effects, within Minnesotas regulations:
"Cumulative potential effects" means the effect on the environment that results from the
incremental effects of a project in addition to other projects in the environmentally relevant
area that might reasonably be expected to affect the same environmental resources, including
future projects actually planned or for which a basis of expectation has been laid, regardless
of what person undertakes the other projects or what jurisdictions have authority over the
projects. . . . In determining if a basis of expectation has been laid for a project, an RGU
must determine whether a project is reasonably likely to occur and, if so, whether sufficiently
454
Twin Metals Minnesota, Project Facts, accessed at http://www.twin-metals.com/about-theproject/project-facts/ on Jan. 2, 2016 (attached as exhibit 21b).
455
Id.
456
Id.
457
Minnesota Minerals Coordinating Committee, Explore Minnesota: Copper, Nickel PGEs
(March 2013) (attached as exhibit 21c).
108
detailed information is available about the project to contribute to the understanding of

cumulative potential effects. In making these determinations, the RGU must consider:
whether any applications for permits have been filed with any units of government; whether
detailed plans and specifications have been prepared for the project; whether future
development is indicated by adopted comprehensive plans or zoning or other ordinances;
whether future development is indicated by historic or forecasted trends; and any other
factors determined to be relevant by the RGU.458
The lead agencies, however, failed to address whether there is a basis of expectation that Twin
Metals will proceed, in violation of the MEPA. Moreover, the agencies further violated this
regulation by failing to consider the detailed plans and specifications that have already been
prepared for Twin Metals, as plainly evident by its 500+ page Technical Report on Pre-feasibility
Study. And the agencies further failed to consider whether historic or forecasted trends further
indicate that Twin Metals is reasonably likely to be approved. It does not take a serious study of the
history of the Iron Range to know that virtually all proposed mining projects and mining expansions
have been approved in the past, which was never considered by the agencies before concluding that
Twin Metals remains speculative.
The agencies also refused to consider Teck and its leases, exploration and drilling on the Mesaba
deposit, adjacent to the NorthMet site. As explained in the FEIS comments provided by Andrew
Comfort, the FEIS is wrong that the Teck and PolyMet projects are 3 miles apart.459 They are
instead immediately adjacent to one another, and the agencies have failed to consider the continuous
band of ore that connects PolyMets proposal to Teck and the Mesabi deposit.460
Relatedly, the agencies cumulative impacts analysis in the FEIS also fails to address PolyMets plans
for future expansion and/or for the Plant Site to be utilized for future copper-nickel mining projects
in this region. Because the plant will operate only at approximately one-third capacity for the
proposed NorthMet project, its use for other projects is likely.461 As explained in an Edison
Investment Research Limited report, there is a good chance PolyMet will be able to expand the size
of its resource by 50-100% based on what we learned on a site visit.462 Additionally, [t]here are
roughly 11 mineral properties within shipping distance of PolyMets mill, and [w]e believe there is
a good chance PolyMet will decide to toll process third-party ore from some relationships with one
458
Minn. R. 4410.0200, subpart 11a.

See FEIS at 6-21.
460
See Ex. 21c (stating that Teck is an active copper nickel project, with leases on the largest
known deposit in the belt, the Mesaba (or Babbitt) deposit, which lies between the NorthMet and
Birch Lake deposits).
461
See e.g., Barr 2012r at 5-6 (stating that PolyMets purchase of the LTV taconite plant includes the
existing crushing plant, which has a capacity of 100,000 tons per day, and that even though the
design of PolyMets operation reflects an average throughput of 32,000 tons per day, PolyMet
intends to permit all of the existing crushing plant equipment to allow for operational flexibility).
462
Edison Investment Research Ltd, PolyMet Mining Corp.: Low-cost polymetallic development
project 5 (Nov. 21, 2013) (attached as exhibit 21d).
459
109
or more local projects.463 Of course the additional use of this Plant Site for expansions and other
mining proposals would significantly increase the amount of waste that would be deposited into the
tailings basin. This would also greatly increase the amount of vehicle and rail traffic and other
disturbances in the immediate project area, impacting numerous resources. The agencies, however,
failed to consider the forecasted trend for PolyMet and the NorthMet mine site, as analyzed and
disclosed by Edison and brought to the agencies attention during the NorthMet public comment
period, in violation of NEPA and MEPA.
The FEIS also fails to set forth the proper geographic scope for the cumulative impacts analysis,
especially concerning the potential impacts to water, wetlands, and aquatics, where the agencies
refuse to extend the scope of analysis to the entire St. Louis River watershed. There can be no
dispute that past and ongoing mining and related activities have resulted in major, significant
impacts to the St. Louis River watershed, all the way downstream to the estuary which is formally
designated as an Area of Concern.464 From thousands of acres of permanent wetlands destruction,
to sulfate pollution that has wiped out miles of historic wild rice, to mercury related health warnings,
the agencies cannot simply ignore a century of impacts from mining and other industrial activities on
this watershed.465
As further explained by Tribal Cooperating Agencies, nearly half of the St. Louis River watershed
has experienced hydrologic alteration from extensive ditching.466
It is reasonably foreseeable that an additional 3000 acres of wetlands within the watershed will be
directly impacted by proposed new mining projects and expansions that are in active permitting
and/or environmental review: the PolyMet NorthMet project, Mesabi Nugget Phase II, US Steel
Minntac expansion, US Steel Keetac expansion, United Taconite Tails Basin 3 construction. To
date, virtually all required wetland mitigation for mining impacts has been implemented out of the
basin, representing a permanent loss of high quality ecological resources and functions.467
Similarly, in looking forward the agencies cannot simply proclaim that no specific mine, by itself, will
have any significant impacts on the entire watershed. First, the agencies are wrong that large-scale
open-pit mining, including the proposed PolyMet mine, will not have significant impacts on
numerous resources, including water and wetlands. Second, both NEPA and MEPA recognize that
463
Id. at 10.
See e.g., FEIS, Appendix C (Tribal Cooperating Agencies Cumulative Effects Analysis, stating
that current, historic, and reasonably foreseeable mining activities have profoundly and, in many
cases permanently, degraded vast areas of forests, wetlands, air and water resources, wildlife habitat,
cultural sites and other critical treaty-protected resources within the 1854 Ceded Territory).
465
Id. (Tribal Cooperating Agencies, stating that the relevant spatial scale for water quality and
hydrologic cumulative effects analysis is the entire St. Louis River watershed, which has
experienced substantial historic, current and proposed expanded mining activities, as well as other
industrial, agricultural and urban development).
466
Id.
467
Id.
464
110
cumulatively significant impacts may occur as the result of a number of individually insignificant
impacts taking place over time within the same watershed.468
This is an error that the FEIS makes again and again, for virtually every type of impact. From the air
deposition of mercury to area lakes, to ambient air pollution and regional haze, to the loss of critical
habitat, to impacts on state-listed endangered plants, the FEIS compares the level of impact from
this project to the cumulative impact and deems the impacts from this project insignificant and thus
not of concern, even in regards to the cumulative problem. The FEIS must reveal the level of
cumulative impact that all sources together have on impacted resources, and acknowledge that the
proposed NorthMet project would be one of many sources that together cause the impacts. The
very nature of cumulative impacts is that small sources will have to be curtailed if the problem is
ever going to be addressed.
Due to the major deficiencies in the cumulative effects analysis for the NorthMet proposal, the
Tribal Cooperating Agencies prepared their own.469 As explained by the Tribes, the lead agencies
failed to consider their repeated requests to utilize a tool developed by the EPA in 2011 in
cooperation with tribes entitled, Applying Cumulative Impact Analysis Tools to Tribes and Tribal
Lands. This is despite the Mine Site and Plant Site, and resulting impacts, being located within the
1854 Ceded Territory, and upstream from the Fond du Lac Reservation. The Tribes thus undertook
a resource-specific GIS-based approach as defined in the 2011 guidance to generate an alternative
[cumulative effects analysis] that more accurately accounts for cumulative impacts to resources of
tribal significance.470 The Co-Lead Agencies, however, failed to utilize or consider this improved
and more detailed cumulative impacts analysis in the FEIS, in violation of NEPA.471
Additional major flaws with the FEISs cumulative effects analysis are set forth in the November 13,
2015 request by the Fond du Lac Band of Lake Superior Chippewa for predecisional referral of the
North Met proposal to CEQ.472 As explained by Fond du Lac, bedrock and surficial groundwater
pollution is already documented at the same site PolyMet intends to use for the NorthMet project
(the LTV site), and the Dunka Pit. As the Band has requested, the agencies must consider and
disclose the cumulative impacts of the NorthMet proposal, LTV site, Dunka Pit, as well as the
groundwater pollution from nearby iron ore mines, including the Peter Mitchell Pit, Laskin Energy,
468
40 C.F.R. 1508.7; Minn. R. 4410.0200, subp. 11; see Citizens Advocating Responsible Development v.
Kandiyohi County Board of Commissioners, 713 N.W.2d 817, 836 (Minn. 2006) (recognizing that an
individually insignificant project may have a significant environmental effect when considered in
conjunction with other projects).
469
See FEIS, Appendix C (Tribal Cooperating Agencies Cumulative Effects Analysis).
470
Id.
471
See e.g., 40 C.F.R. 1502.24 (agencies must insure the professional integrity, including scientific
integrity, of the discussions and analyses in environmental impact statements); 1502.9(b) (agencies
must discuss in FEIS any responsible opposing view).
472
Wally Dupuis to Sally Jewell, Request of the Fond du Lac Band of Lake Superior Chippewa for
Predecision Referral to the Council on Environmental Quality of Disagreements Over
Environmental Impacts of NorthMet Mining Project and Land Exchange Action (Nov. 13, 2015)
(attached as Exhibit 21g).
111
Arcelor-Mittal, United Taconite, and US Steel Minntac. Moreover, the Band again repeats the need
for a geographically broader and watershed-based cumulative impacts analysis that takes into
account other major proposals such as United Taconites proposal for 1,200 acres of wetland
destruction to build a new tailings basin, and the existing pollution that is already causing water
quality standard violations in the St. Louis River watershed.
22.0
The FEIS does not assess cumulative impacts on wildlife
The FEIS fails to assess the cumulative impacts on sensitive wildlife species, which the FEIS defines
to include federal and state-listed species, including state species of special concern, and Forest
Service Sensitive Species.473 This issue was raised in our comments on the SDEIS at MCEA 118 and
CBD 73-75, which are attached and incorporated herein. We also submitted a supplementary letter
to Forest Supervisor Brenda Halter on October 8, 2015, which is also attached and incorporated
herein. The FEIS neither mentions this issue in its Response to Comments, nor includes material in
the text of the FEIS that responds to the issue, in violation of 40 C.F.R. 1503.4(a) (agency must
consider and respond to comments) and 40 C.F.R. 1502.9(b) (agency must discuss in FEIS any
The FEIS claims that the cumulative effects analysis for wildlife focuses on potential losses to
sensitive wildlife species.474 In fact, however, the FEIS provides only a few pages of very general
information, with the vast majority of sensitive species not even mentioned. There is therefore no
scientific support for the agencies conclusion that the proposed NorthMet mine, along with all
other past, present, and reasonably foreseeable actions, would not further threaten special status
wildlife species.475
The FEIS also purports to assess the impacts of the land exchange on wildlife resources on the
federal estate, but it does so without adequate information about wildlife resources currently present
on the federal estate. The FEIS provides no context to determine whether losses to the federal
estate will be significant, whether cumulatively or from this project alone. The cumulative impacts
assessment for the land exchange simply repeats the assessment for the mine, and provides no
information whatsoever about threats to or population status of various wildlife species across the
Superior National Forest.
While Chapters 4 and 5 of the FEIS list many species of concern that either are found at the project
site or for which the project site provides habitat, and Chapter 5 at least purports to assess the
impacts that the NorthMet project alone would have on these species, Chapter 6 provides no
comparable analysis for cumulative impacts. And yet almost all of the species of concern are on the
list of Regional Forester Sensitive Species (RFSS) due to current or expected cumulative losses of
473
FEIS at 6-71.
Id.
475
Id.
474
112
habitat across their range within the region.476 Without an analysis or explanation of the ultimate
impact on these species from cumulative losses and how the NorthMet project would contribute to
those losses, the FEIS does not provide the hard look at impacts required by NEPA.
To adequately consider cumulative impacts under NEPA, some quantified or detailed information
is required.477 Without such information, neither the courts nor the public, in reviewing the
[agencys] decisions, can be assured that the [agency] provided the hard look that it is required to
provide.478 General statements about possible effects and some risk do not constitute a hard
look absent a justification regarding why more definitive information could not be provided.479
In its cumulative impacts analysis for wildlife, the FEIS provides only very general statements
concerning risks and impacts, which falls far short of the detailed and quantified analysis required by
NEPA. The sum of the assessment is found in three statements. First:
Cumulative effects on wildlife may include the loss and/or fragmentation of habitat and
encroachments into critical wildlife travel corridors480
Second:
In addition to habitat fragmentation and loss and effects on wildlife crossing corridors,
wildlife species of concern in the Nashwauk Uplands and Laurentian Uplands ecological
subsections are subject to other stressors that could result in cumulative effects. Traffic and
activity related to mining projects, urban development, forestry, tourism, and road
expansions all increase the risk for special status wildlife species and, as such, could result in
cumulative effects.481
And finally, in regards to wildlife travel corridors:
Wildlife could be affected by the NorthMet Project Proposed Action and other actions
through a cumulative disruption of their travel corridors. These actions could pose additional
barriers to wildlife movement by increasing the number of isolated patches of suitable
habitat, increasing mortality during transit, and physically blocking travel. This may lead to
476
The RFSS list includes species that face either significant current or predicted downward trends
in population numbers or density, or significant current or predicted downward trends in habitat
capability that would reduce a species existing distribution. BE ii, FEIS App. D. The main text of
the FEIS refers to RFSS species but provides no explanation of what that means, once again failing
to provide context that would allow a judgment regarding the significance of impacts.
477
Neighbors of Cuddy Mountain v. U.S. Forest Service, 137 F.3d 1372, 1379 (9th Cir. 1998).
478
Id.
479
Id. at 1380.
480
FEIS 6-71.
481
FEIS 6-79.
113
increased population and genetic isolation and decreased meta-population dynamics, which
in turn could lead to decreases in overall population stability and persistence.482
The FEIS provides additional cursory information about the approach it used to reach this
assessment, including the spatial boundaries; the timeframe; the list of past, present, and
foreseeable future actions considered; the causes of habitat changes; the vegetation types of affected
habitats; and the list of wildlife corridors and projects affecting them. But aside from a couple of
brief paragraphs on federally-listed species (which are addressed below), the three statements quoted
above are all the cumulative assessment says about the actual impacts on wildlife. The FEIS provides
no information on the status of or impacts to any specific species.
As an example of what is missing, the FEIS tells us that loss of wildlife habitat in the Laurentian
Uplands will be due primarily to timber harvest and mining, while losses in the Nashwauk Uplands
will be due primarily due to mining and urban development.483 But it completely fails to tell us what
those losses are expected to be, or how they will impact specific species. Absent a justification as to
why more detailed and quantified information cannot be provided, these very general statements are
insufficient and fail to comply with NEPA.484
The U.S. Court of Appeals for the Ninth Circuit rejected a similar cumulative effects analysis for a
proposed mining project. In Great Basin Mine Watch v. Hankins, the court struck down the agencys
reliance on the same sort of brief, generalized descriptions of mining impacts in the region.485 The
court required the agency to include mine-specific cumulative data.486 Relying on prior cases,
the court highlighted the need for a quantified assessment of [other projects] combined
environmental impacts and objective quantification of the impacts.487 The FEIS for the proposed
PolyMet mine similarly fails to provide the required detailed analysis of cumulative impacts.
Moreover, the cumulative effects analysis entirely fails to even mention moose, despite the
documented presence of moose in the area, its rapidly declining population and designation as a
species of special concern, its iconic status to the citizens of Minnesota, and its cultural significance
to the Tribes. The agencies failure to address such a fundamentally important issue violates
NEPA.488
Chapter 5 of the FEIS acknowledges that the proposed mine by itself would likely affect moose
individuals in the vicinity through habitat loss and fragmentation;489 the fact that there will be
cumulative impacts to moose and moose habitat resulting from the proposed mine and other actions
and activities in the region, including numerous other mining related projects and activities, is
482
FEIS 6-74.
FEIS 6-73.
484
Neighbors of Cuddy Mountain, 137 F.3d at 1379-80.
485
456 F.3d 955, 971-974 (9th Cir. 2006)
486
Id. at 973.
487
Id. at 972.
488
See Foundation for North Am. Wild Sheep v. U.S Dept. of Agric., 681 F.2d 1172, 1178 (9th Cir. 1982).
489
FEIS 5-439
483
114
obvious. As noted by the Tribal cooperating agencies in their comments on the initial DEIS for this
project, the Minnesota advisory committee studying the decline of the moose population in
northeastern Minnesota recommended preserving wetlands as sanctuaries for moose from heat
stress.490 Yet PolyMet is proposing the largest wetland fill ever permitted in this region, and
additional losses will follow with other mining activity. Wetland mitigation for the PolyMet project
will be located outside of the area that still supports a moose population,491 as will the largest tract of
the replacement lands that the Forest Service will receive in the land exchange. This loss will
undoubtedly be joined by other losses of wetlands throughout Minnesotas remaining moose
territory, but the FEIS provides no information on what the extent of those losses is likely to be.
As with moose, the lack of information on the projected cumulative impacts from this and other
foreseeable actions is exacerbated by the lack of information on the current status of other sensitive
species. This lack of information makes it impossible to guess at the significance of additional loss or
fragmentation of habitat. For example, the FEIS tells us that Two northern goshawk territories
have been identified at or near the Mine Site.492 But there is no information anywhere in the FEIS
by which to determine whether the loss of these territories is significant in relation to the number of
other territories in the state and the threats they may be facing.
The same information is missing in regards to resources on the federal estate. Although the FEIS
purports to assess loss of wildlife resources to the federal estate,493 it provides no information on the
current status of any species on the Superior National Forest. It thus fails to provide any context by
which to judge losses or impacts.
Because the FEIS fails to provide this information, we submitted a FOIA request to the Forest
Service on August 28, 2015.494 We were told that the Forest Service relied on the state Natural
Heritage Information System to track this data, and that because NHIS data is confidential, the
Forest Service could not provide it to us. It was suggested that we contact the DNR and receive the
data directly from them in order to provide the necessary confidentiality agreement. We received the
contact information from the Forest Service on October 6, and began our attempts to reach the
NHIS coordinator on October 8. We finally received the data on December 16.
We are unable to submit this data with these comments because it is protected by a confidentiality
agreement, and all material submitted with comments becomes available to the public. We are
including the index to the data we received, which is disclosable, as Exhibit 22m. We note that the
NHIS database is cited as a reference to the FEIS,495 but the reference discs provide only a copy of
the webpage access portal, and not the data itself. We expect that the database will be available in the
record in the event of litigation.
490
See Exhibit 20a.

See Glenn D. DelGiudice, 2015 Aerial Moose Survey 2 (attached as Exhibit 20c).
492
FEIS 4-239.
493
FEIS 5-721 to 5-738.
494
Marc Fink to Kris Reichenbach, Re: Freedom of Information Act Request re: Certain RFSS
Species (Aug. 28, 2015) (attached as Exhibit 22o).
495
FEIS Reference MDNR 2013a.
491
115
The Biological Evaluation states that both northern goshawks and great gray owls have been
observed nesting on the federal lands over the past ten years.496 Unfortunately, nothing in either the
BE or the FEIS gives any indication of the significance of those observations. For example, the BE
discusses two goshawk nesting territories on the federal lands, but says nothing about the number of
active goshawk nesting territories on the national forest as a whole. In order to provide the hard
look at losses to the federal estate that NEPA requires, the FEIS must disclose what is known
about the number of nesting territories on the national forest, how many of them are used by
goshawks in any given year, and how many actually produce young. This must be followed by an
assessment of the significance of losses due to the proposed land exchange and mine, and that
assessment must include some reasoned basis for its conclusions.
The lack of information on northern goshawks stands in contrast to what is found in other recent
EISs prepared by the Forest Service. For example, the Glacier Project Biological Evaluation states,
Surveys for nesting goshawks have been conducted in several project areas within the
Kawishiwi Ranger District over the past 6 years. Three occupied goshawk nesting territories
have been found. One of them is within the Glacier project area. Eight survey routes
consisting of approximately 60 calling points were conducted in the Glacier area in 2006 and
2007(survey records in project file). The best potential goshawk habitat is within the large
mature upland patches in the Fernberg corridor and south of the Kawishiwi River and
southwest of Birch Lake (goshawk map, project record). 2005 Forest-wide survey efforts
showed an increase of known breeding pairs over those known in 2003 (Annual Monitoring
Report 2006). Based on the 2007 Statewide Goshawk monitoring effort there are 26 known
territories on the Superior National Forest. Nine were known to be occupied in 2007.497
Why was similar, updated information not provided in the BE or FEIS for the NorthMet project?
In addition to its gaps in crucial information, the NorthMet BE minimizes the amount of impacted
acres from the project to 158 acres of mature upland forest habitat that would be directly
affected and compares it to 625,000 acres of upland forest within the CESA that could now, or in
the reasonably foreseeable future, provide habitat for northern goshawk, concluding that habitat
loss from the Project would have a negligible cumulative effect on northern goshawks in the
CESA.498 But further investigation reveals that the 625,000 acre figure does not take account of any
factors that make large portions of that forest unsuitable for goshawks, including fragmentation, age,
size of patches, and noises and other disturbances. And it is flatly untrue that it is reasonably
foreseeable that in the future this forest will be less fragmented, older, and subject to less noise and
disturbance.
496
FEIS App. D, BE 5-58 to -59 and 5-65.

Susan Catton et al., Glacier Project Draft Environmental Impact Statement Appendix F at F-18
(2007) (attached as exhibit 22a).
498
BE 5-61, FEIS App. D (citing Emmons and Olivier 2006 at 30, 38).
497
116
Neither the FEIS nor the BE actually tells us how many acres of suitable habitat will be directly and
indirectly impacted by the NorthMet Project and/or land exchange. This would include acreage that,
while not directly impacted, is lost to goshawks because it is no longer contained within a large
enough patch of mature upland forest.499 It would also include acreage that is impacted by noise,
traffic, and human presence. For the cumulative effects analysis, added to that would be habitat
similarly affected by other past, present, and foreseeable future projects.
In the context of the numbers discussed in the Glacier Project EIS, the loss of even one nesting
territory appears significant, and would be even more significant if other territories are threatened by
foreseeable projects and activities. But the FEIS gives us none of this information. In sum, due to
the failure of the FEIS to provide meaningful and detailed information and analysis, neither the
public nor agency decision makers have any idea what this project means for northern goshawks in
Minnesota or the Superior National Forest. The FEIS thus has not done its job.
The FEIS provides even less information on great gray owls, which also use the site.500 The best
information we were able to obtain again, outside of the FEIS and are able to discuss here is the
last annual wildlife survey report released by the Superior National Forest, which is from 2009. This
report indicates that surveys of the Laurentian Forest Province of Minnesota observed one great
gray owl in 2008 and two in 2009.501 Nesting information from the same report states,
MOU records show one nesting record in Lake County. The Biotics database listed two
nests in 2004 and four nests as of 2009: the latest two were found and protected, and are
annually monitored by FS biologists. NRRI observed one individual during forest breeding
bird surveys between 1991 and 2002. There are approximately 36 great gray owl nesting
499
For more information on northern goshawk status and habitat needs, see Exhibit 22b (D.
Coleman Crocker-Bedford, Goshawk Reproduction and Forest Management, Wildl. Soc. Bul.
18:262-69 (1990)); Exhibit 22c (K.S. Marvel, Northern Goshawk Nest Activity as an Indicator of
Habitat Quality on Three National Forests in Southern Utah, All Student Publications (2007));
Exhibit 22d (Richard T. Reynolds et al., Management Recommendations for the Northern Goshawk
in the Southwestern United States, USDA Forest Service Technical Report RM-217 (1992)); Exhibit
22e, (John R. Squires and Patricia L. Kennedy, Northern Goshawk Ecology: An assessment of
current knowledge and information needs for conservation and management, in Michael L.
Morrison, ed., The Northern Goshawk: A Technical Assessment of its Status, Ecology, and
Management 8-62 (2006)); Exhibit 22f (A. Kari Stuart-Smith et al., A Scientific Basis for Managing
Northern Goshawk Breeding Areas in the Interior of British Columbia (2012)); Exhibit 22g (D.
Noah Greenwald, A review of northern goshawk habitat selection in the home range and
implications for forest management in the Western United States, Wildl. Soc. Bull. 33(1):120-129
(2005)).
500
FEIS 4-244.
501
Superior National Forest, Fiscal Year 2009 Monitoring and Evaluation Report Chapter III,
Section 9b, Regional Forester Terrestrial Sensitive Species 9b.14 (July 2011) (attached as exhibit
22h).
117
platforms on the SNF since 2007. Platforms have been monitored every year with no
detections as of yet.502
The NHIS database reveals that there have been only eleven reports of great gray owls sighted on
the Superior National Forest over a ten year period.503 These reports indicate that the fact that great
gray owls have been seen in several years nesting and hunting at the PolyMet site is far more
significant than one might guess from reading the FEIS. The agencies failure to analyze and disclose
this highly relevant information violates NEPA.
While northern goshawks, great gray owls, and moose are three species that are known to make use
of the mine site and the federal lands, the site also provides habitat for a number of other sensitive
species, which are listed in the BE and FEIS.504 The FEIS must provide substantially more
information on the status of these additional species of concern and their habitat, and threats to the
species and their habitat throughout the Superior National Forest and the state of Minnesota in
order to provide a rational and scientifically supported basis for the agencies judgment as to the
significance of the loss of habitat from this project in conjunction with other past, present and
reasonably foreseeable actions.
The agencies consideration and disclosure of the cumulative impacts to federally-listed lynx, wolves,
and the northern long-eared bat in the FEIS is also insufficient. Even though the presence of each
of these imperiled species has been identified in the affected region, and would admittedly be
adversely affected by the proposed mine, the FEIS devotes just one short paragraph to each in its
assessment of cumulative impacts.505 And again, the FEIS provides only general and already obvious
information that does not satisfy the hard look required by NEPA.506 The FEIS, for instance,
discloses that cumulative impacts would result in additional habitat fragmentation, may increase
pressures for lynx and wolves, would likely result in additional traffic and potential collisions, and
could affect northern long-eared bats through habitat destruction and fragmentation.507 The FEIS,
however, fails to take the next required step to quantify or estimate the extent and magnitude of
these anticipated cumulative impacts, explain what these cumulative impacts could mean for the
already imperiled populations in the region, or provide any other useful, detailed information to
allow the public and decision makers to actually weigh the significance of the likely cumulative
impacts to these listed species.
We also object to geographical limitations on the projects and activities considered in the cumulative
impacts assessment for wildlife.508 According to the text,
502
Id. at 9b.15.
Minnesota Natural Heritage Information System, Rare Features Database Page Index Report of
selected records within 1 mile radius of: Superior National Forest, 22 (Dec. 2015) (attached as
Exhibit 22m).
504
BE 1-14 to 1-16, FEIS 4-239 to 4-245.
505
FEIS 6-79.
506
Neighbors of Cuddy Mountain, 137 F.3d at 1379-80.
507
FEIS 6-79.
508
FEIS 6-72.
503
118
The spatial CEAA [Cumulative Effects Assessment Area] for wildlife includes the portions
of the Mesabi Iron Range located within the Nashwauk Uplands and Laurentian Uplands
ecological subsections (see Figure 6.1.1-1). The area has been limited to the Mesabi Iron
Range, as it is a definable physiographic region encompassing the regions mining, which
represents an influential land use in regards to wildlife and wildlife habitat.509
Figure 6.1.1-1 shows the Mesabi Iron Range within the Nashwauk Uplands and the Laurentian
Uplands to be a very narrow band of territory with no relationship to the range of any of the
wildlife species of concern.
Despite the above language, the assessment is not limited to the Iron Range for anything except the
mining projects from which impacts are included in the assessment. For example, the scant
information provided on historic changes to habitat in the area are given for the entire Nashwauk
Uplands and Laurentian Uplands areas.510 And in regards to non-mining projects, the impacts of
both community growth and development and forestry practices are given at the regional
level, which is undefined. Regarding impacts from mining, however, the FEIS inexplicably omits
activity outside the narrow band of the Iron Range.
This omission is significant in light of the amount of mining activity occurring and planned in the
Superior National Forest and surrounding area. In May 2012, the Forest Service completed an EIS
for 29 federal hardrock mineral prospecting permits, which acknowledged impacts to wildlife
including up to 163 miles of new roads, increased traffic volume, and the increased noise from
drilling.511 While the mineral prospecting EIS was limited to projects where the federal government
owns the mineral rights, there are many additional mineral exploration projects within and near the
Superior National Forest where the mineral rights are owned by private interests or the State, along
with numerous other projects that were not included in the NorthMet FEIS.512 Additionally, the
BLM is currently considering potential lease renewals for Twin Metals, which would result in
additional exploration and other mining activities.513 And the Forest Service recently released an
Environmental Assessment for the Twin Metals hydrogeological study; the Biological Evaluation
from that project is attached.514 All of these projects will have impacts on wildlife, each of which
may not be significant standing alone, but which are very likely to be significant in the aggregate.
509
FEIS 6-71.
FEIS 6-73.
511
Superior National Forest, Final Environmental Impact Statement, Federal Hardrock Mineral
Prospecting Permits 167-183 (May 2012) (attached as exhibit 22i).
512
See id. App. C; Superior National Forest, Twin Metals Minnesota Hydrogeologic Study Special
Use Permit Environmental Assessment App. B (Oct. 8, 2015) (attached as exhibit 22j).
513
Bureau of Land Management, NEPA Log FY 2013 (website accessed Nov. 23, 2015) (attached as
exhibit 22k).
514
Superior National Forest, Twin Metals Minnesota Hydrogeological Study Special Use Permit
App. G, Biological Evaluation of Regional Forester Sensitive Species (June 2015) (attached as
exhibit 22l).
510
119
None of these projects, however, are considered in the FEIS cumulative impacts analysis for the
NorthMet project.
Defining an area for the assessment of cumulative impacts must begin by looking at the resource
that is potentially affected. If viability of a species within the Superior National Forest is being
assessed, the appropriate area for assessing past, present and foreseeable future activities that could
cumulatively impact the species is the Superior National Forest. If viability within the state is being
assessed, the appropriate area is that area of the state that provides habitat for the species. Without
providing information on foreseeable threats to a species in other portions of its territory, it is
impossible to know the import of threats within a smaller area that the agencies arbitrarily choose to
assess.
22.1
Cumulative impacts on rare plants
The FEIS contains a similar problem in regard to rare plants. This issue was raised in our comments
on the SDEIS at Friends 63-64 and CBD 76, as well as in our letter of October 8, 2015 to Forest
Supervisor Brenda Halter. The comments and letter are attached, and the referenced pages
incorporated herein. This issue was not addressed in either the Response to Comments or the text
of the FEIS, in violation of 40 C.F.R. 1503.4(a).
The cumulative effects analysis for rare plants provides the same delineation of the cumulative
effects assessment area (CEAA) as is discussed above for wildlife, i.e, the portion of the Iron Range
within the Nashwauk and Laurentian Uplands.515 It then discusses the number of populations of rare
plants for which Takings Permits have been issued within the CEAA.516 But rather than comparing
the number of affected populations in the CEAA with the total number of populations in the
CEAA, it instead provides a comparison with the number of populations statewide. The FEIS
simply assumes that all populations outside the CEAA are secure, an assumption that has no basis in
the record.
Furthermore, limitation of the analysis to impacts for which Takings Permits have been issued very
likely understates the impacts. According to the assessment for three plant species, none are
expected to be indirectly affected. We question whether Takings Permits are an appropriate means
to assess indirect effects; we doubt that mining companies have applied for Takings Permits for such
effects, which are generally somewhat uncertain until after they occur.
At any rate, the fact that as much as 8 percent of the statewide population of one rare species (ternate
grapefern) is expected to be directly affected by currently planned takings on the Iron Range alone
gives one reason for pause. Without some information about threats to this species throughout its
range in Minnesota, the conclusion that the cumulative effects of the NorthMet Project Proposed
Action and other reasonably foreseeable activities are not expected to jeopardize the presence of B.
rugulosum in Minnesota is unfounded. The same is true for all of the other species of concern that
515
516
FEIS 6-63.
FEIS 6-67 to 6-68.
120
will be impacted by this project, including the floating marsh marigold. To comply with NEPA, the
FEIS must provide information about threats to these species statewide.
The FEIS also fails to provide sufficient information about the presence of these species on the
Superior National Forest and their potential loss to the federal estate. The FEIS tells us only how
many population of the plants exist statewide; no information is given on populations within the
national forest. As discussed below, the Forest Plan includes provisions to protect the viability of
RFSS plants within the National Forest; without the missing information, that viability cannot even
be guessed at.
The NHIS database indicates that for several RFSS plants, the population on the federal lands is one
of a very small number forest-wide. Within the Superior National Forest, the NHIS contains a total
of nine records of floating marsh marigold, 16 of Michigan moonwort, 16 of ternate grapefern, 20 of
pale moonwort, and 25 of bogrush.517 The database contains additional information on the size of
populations that also reflects on the significance of losses due to the proposed project and land
exchange. Much of this information could be disclosed without providing specific locations or
anything else that might put the plants in jeopardy. The information is directly relevant and
necessary to informed decision-making, and therefore must be disclosed in the FEIS.
For the cumulative impacts assessment, the FEIS also must assess the security of other populations
of these plants throughout the forest. This includes threats due to climate change. Without knowing
what threats are faced by other populations and the species as a whole, the significance of the loss of
populations at the NorthMet site cannot be determined.
The mine site also provides habitat for five particularly rare and sensitive species of lichens: Cetraria
aurescens (no common name), Sticta fulginosa (peppered moon lichen), Menegazzia terebrata
(honeycombed lichen), Ramalina thrausta (cartilage or angels hair lichen), and Usnea longissimi (beard
lichen).518 Regarding honeycombed lichen, the BE states,
In the Great Lakes Region, honeycombed lichen survives in the oldest and wettest northern
white cedar bogs as a few scattered individuals on cedar trunks (estimated 200+ years) in
relatively open areas with 50 to 60 percent canopy cover. In Minnesota, five sites were found
on the Superior National Forest within interior portions of old growth northern white cedar
bogs.519
Although the FEIS does not include sufficient information on habitat conditions, a reference
document states, Much of One Hundred Mile Swamp consisted of mature (80+years) black spruce
517
selected records within 1 mile radius of: Superior National Forest (Dec. 2015) (attached as exhibit
22m).
518
BE 1-7.
519
BE 5-21.
121
and northern white cedar.520 The same document states that the largest trees at the site are 18 to 20
inches dbh, but does not specify whether some of the trees of this size are cedars. If they are, this is
within the size range of a 200-year-old cedar.
The BE states that appropriate habitat also exists on the federal lands for angels hair lichen.521
According to the latest DNR SONAR for listing species, the only 3 known instances in Minnesota
are in Cook County; it is apparently found hanging in the limbs of old conifer trees in very humid
locations.522
Regarding the other lichens:
Peppered moon lichen is found on conifer and hardwood trees in mature, moist forests and
bogs. Yellow birch and northern white cedar are preferred substrates. This lichen prefers
partial shade in areas that tend to retain moisture, such as northern white cedar swamps, and
is often growing on the lower trunks of trees, 3 to 5 feet above the ground.523
Beard lichen is usually found in forests near streams, lakes, or in bogs. The forests are
balsam fir, black spruce, or northern white cedar over 100 years old that may be open or
quite shady. High humidity and habitat continuity are important for growth, but this species
grows better on the upper branches of trees where there is more available light. The recent
localities in Superior National Forest are undisturbed balsam fir or northern white cedar
stands near water.524
In northern Minnesota, [Cetraria aurescens] is restricted to moist habitats near bogs or water
in areas of old-growth forest without disturbance, especially within northern white cedar
swamps over 100 years old. In the Great Lakes Region, this species seems to require oldgrowth, moist habitats. In a habitat study in Superior National Forest, this species was found
in forest stands with an overstory ranging from 10 to 80 percent and on trees ranging in age
from 118 to 266 years. These localities were usually northern white cedar swamps or black
spruce bogs.525
Part of the reason why these lichens are so rare is that their habitat is rare. Large, old growth
forested wetlands are not common; this is precisely the reason why the One Hundred Mile Swamp
and the Upper Partridge River headlands have been rated as areas of High Biodiversity Significance.
The Forest Service proposes to trade away a large acreage of this rare habitat, habitat admitted to
520
AECOM 2011a.
BE 5-23.
522
Minnesota DNR, Proposed Amendment of Minnesota Rules, Chapter 6134: Endangered and
Threatened Species Statement of Need and Reasonableness (August 10, 2012) (accessed at
http://files.dnr.state.mn.us/input/rules/ets/SONAR_lichens.pdf) (attached as exhibit 22n).
523
BE 5-23.
524
BE 5-24.
525
Id.
521
122
include appropriate conditions for very rare lichens, and yet no survey for lichens has been done. The
statement that none of these lichens are known to exist at the site is meaningless, as no one has ever
looked to see if the lichens are there.
Furthermore, the BE erroneously implies that similar habitat exists on the nonfederal lands.526 To
the contrary, although there are about 3,300 acres of forested wetland on the non-federal lands,
less than 1% of wetland forest is comprised of mature trees.527 Furthermore, we have found no
information in the FEIS or BE that any of this wetland forest is old cedar swamp or black spruce
bog. At best, the FEIS lacks sufficient information to make a determination as to what the federal
estate is losing in terms of habitat for plants and lichens that depend on these habitat types, or
ultimately what the impact on the viability of those species in Minnesota and in the Superior
National Forest might be.
The BE makes the promise that Under the Proposed Action, the Forest Service would survey for
Habitat Group 4 RFSS and associated habitat prior to conducting land-disturbing activities; areas of
known or potential habitat would be avoided when feasible.528 The Forest Service is thus promising
to survey for lichens on lands that are unlikely to contain them, after failing to survey on lands that
are. Rather than making promises about what will be done to identify the resources on the newly
acquired land in the future, the Forest Service needs to identify the resources that exist on the land it
proposes to give up.
Finally, we question the emphasis on available habitat for all of the rare plant and lichen species.
Clearly, available habitat is not enough to increase the populations of these species. If available
habitat were going to make the difference to species viability and increased populations on the
Superior National Forest, we would have many more populations of all of these species by now.
Providing habitat for RFSS species, while important, cannot take the place of identifying and
protecting existing populations.
23.0
The FEIS uses information provided by PolyMet that has not been independently
verified by the agencies.
The Council on Environmental Qualitys NEPA regulation on Agency Responsibility clearly

delineates agency duties to choose unconflicted contractors, confirm that lack of bias in writing, and
supervise contractor work on EIS documents in order to maintain agency control.529 Since Co-Lead
Agencies required Polymet to submit environmental information for possible use by the agency in
preparing an environmental impact statement, . . . The agency shall independently evaluate the information
submitted and shall be responsible for its accuracy.530
Moreover,
526
BE 1-7.
BE 5-25.
528
BE 5-26.
529
See 40 C.F.R. 1506.5.
530
40 C.F.R. 1506.5(a) (emphasis added).
527
123
any environmental impact statement prepared pursuant to the requirements of NEPA shall
be prepared directly by or by a contractor selected by the lead agency . . . . It is the intent of
these regulations that the contractor be chosen solely by the lead agency . . . to avoid any
conflict of interest. Contractors shall execute a disclosure statement prepared by the lead
agency . . . specifying that they have no financial or other interest in the outcome of the
project.531
Numerous U.S. circuit courts have read these requirements to obligate agencies to properly engage
with unconflicted contractors and see to it that the proper disclosures are complete.532 Furthermore,
numerous federal courts have required agencies to perform rigorous independent review of
contractor and applicant information in order to prove compliance with 40 C.F.R. 1506.5(a).533
In general, the FEIS relies far too much on work done by PolyMet and its contractor, Barr
Engineering. In some cases, the SDEIS simply adopts statements from PolyMet without any
independent verification, such as the estimates of tax revenues for the state,534 determinations of
potential for mineral development on the Non-federal Lands (discussed below), or financial
assurance estimates (discussed above in Section 2). This is also the case for many of the inputs into
the water model, including recharge and vertical conductivity, as discussed further above.
23.1
The Biological Evaluation was prepared by a contractor with a conflict of interest,

and was not independently verified by the Forest Service
531
40 C.F.R. 1506.5(c).
See, e.g., Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir. 1991) (remanding to a
federal agency when a contractor was chosen by a local agency and had not completed a required
disclosure regarding conflict); Sierra Club v. Van Antwerp, 526 F.3d 1353, 1368 (11th Cir. 2008) (when
remanding approval of EIS to the district court, A conclusory decision to place decisive reliance on
contested data submitted by an interested party is not reasoned, and therefore deserves no
deference. (Kravitch, J., concurring in part and dissenting in part)); Sierra Club v. Van Antwerp, 709
F.Supp.2d 1254 (S.D. Florida 2009) (finding on remand that the Corps reliance on conflicted
applicant reports was arbitrary and capricious), affirmed, Sierra Club v. Van Antwerp, 362 Fed.Appx.
100 (11th Cir. 2010); Center for Biological Diversity v. Federal Highway Admin., 290 F.Supp.2d 1175, 1186
(9th Cir. 2003) (contractor with clear, disclosed, conflict who prepared part of an FEIS did not
compromise NEPA process because contribution was carefully reviewed by agency and contractor
writing FEIS).
533
See Valley Community Preservation Comn v. Mineta, 231 F.Supp.2d 23 (D.D.C. 2002) (following
Associations Working for Auroras Residential Environment v. Colorado Dept of Transportation, 153 F.3d 1122,
1129 (10th Cir.1998)). In the Eighth Circuit this oversight is sufficient when an agency hires a truly
independent contractor to verify conflicted contractor work, and then performs another
independent review of the contractors work at the agency level. See Mid States Coalition for Progress v.
Surface Transp. Bd., 345 F.3d 520, 54748 (8th Cir. 2003).
534
FEIS 5-858, relying on a personal communication from PolyMet from March 29, 2012, despite
the fact that the state should have more expertise on the question of potential tax revenue.
532
124
In the case of the Biological Evaluation (BE), the Forest Service hired a contractor with a clear
conflict of interest and subsequently failed to independently evaluate the information. Although
nothing in the BE itself reveals this fact, it was prepared by Barr Engineering, the primary contractor
for the company whose proposal was being assessed.535 When we contacted the Forest Service to
clarify what seemed to be an error, we were told that the Forest Service staff whose name appeared
on the BE did not know what was intended by the text in question, and that we should call Barr
Engineering for clarification. As discussed above and below, both the BE and the FEIS are wholly
insufficient in assessing impacts on wildlife; a new BE should be prepared, either by Forest Service
staff or by a contractor that does not have a conflict of interest.
24.0
The FEIS fails to assess the potential impacts of mineral fibers on public health
The FEIS discussion of fibers misstates the current state of knowledge and scientific methodology
for virtually every element that is needed for an assessment of the potential impacts of mineral fibers
on public health. The FEIS must disclose and base its conclusions on the best evidence and
methods available, rather than continuing to repeat the outdated position that nothing is known or
can be known about the toxicity of fibers or the level at which a new facility will emit them. This
issue was raised in our comments on the SDEIS at CBD 87-99 and Friends 74-75, which along with
reference material cited in those comments is attached and incorporated herein.
The FEIS assessment of mineral fibers appears to be based on information from before 2009.
Scientists have done a great deal of work in the past six years developing the ability to assess the
toxicity of fibers of all kinds. As the FEIS puts it, [E]xisting credible scientific evidence, with
additional research, may one day provide guidance for future development of a human health based
standard for amphibole mineral fiber. There is an ongoing effort in the environmental health
community to develop the scientific tools and expertise to arrive at such a standard in the future.536
These tools and expertise have advanced significantly in the past few years.
On October 6 and 7, 2015 the conference on Asbestos-like Mineral Fibers in the Upper Midwest:
Implications for Mining and Health was held at the U.S. EPA Mid-Continent Ecology Division in
Duluth (hereinafter Duluth Conference). The work of EPA research scientist Phil Cook on the
toxicity of fibers was presented along with other research and information indicating that it is now
possible to estimate the potential health impacts from mineral fibers such as those from Northshore
Minings Peter Mitchell Pit and surrounding mines. The Co-lead Agencies should investigate the
current potential for estimating toxicity rather than simply deeming the likely toxicity of fibers from
the Duluth Complex as unknown and unknowable.
It is also untrue that estimates of emissions of fibers cannot be made. While it may be true that the
emissions level cannot be pinpointed with certainty, the same is true of both emissions and
discharges of all the other substances that will be released at this mine. The agencies must perform
535
Jack Greenlee, Superior National Forest, to Jane Reyer (Nov. 23, 2015) (personal
communication).
536
FEIS 5-515.
125
the appropriate studies and calculations of mineral fibers emissions and toxicity at the level of
accuracy allowed by existing science, and provide that assessment in the FEIS.
As with so much of the FEIS, the discussion on amphibole mineral fibers begins by minimizing the
issue. The first sentence states that the Duluth Complex may contain amphibole mineral fibers, as
though the very presence of amphibole fibers is still unknown.537 This is contradicted by the text in
the FEIS itself.538 The introduction goes on to state that taconite ore from the Northshore Mine
has received public attention with regard to potential releases of amphibole mineral fibers.539
There is nothing potential about these releases; the Minnesota Department of Health and
Pollution Control Agency have reams of data stretching over forty years indicating high levels of
amphibole mineral fibers emitted from the Peter Mitchell Pit and the Northshore Mining processing
plant.
The debate over the toxicity of mineral fibers released by mining in Northeastern Minnesota has
long rested on the premise that because these fibers are not asbestos, nothing is known about
their toxicity; the NorthMet FEIS follows in this vein. Rather than designing studies to look at the
toxicity of these fibers, industry has tried to keep attention on the toxicity of asbestos fibers and the
alleged impossibility of correlating the information.
In the meantime, Phil Cook and a number of researchers studying the fibers that have cost so many
lives in Libby, Montana, have set aside the argument over what is and is not asbestos or
asbestiform and have instead looked at toxicity studies of a range of fibers with variable factors
such as particle dimensions, mass, shape, surface area, and material type. As some of these
researchers point out in a 2011 journal article, For regulatory and health assessment purposes, it is
microscopical morphology that counts: there is no evidence that potentially affected cells can
distinguish between asbestiform and nonasbestiform fibres having the equivalent dimensions.540
The EPA put together a database of 70 mineral fiber samples used in biological studies and
characterized by transmission electron microscopy (TEM).541 The database includes fibers from the
Peter Mitchell Pit, several types of UICC asbestos fibers, and other mineral fibers not classified as
asbestos.542 This work was done in response to the understanding that although non-asbestos fibers
(including cleavage fragments) may not be as toxic as asbestos, that does not mean that they are
benign.
537
FEIS 5-513.
FEIS 5-517.
539
FEIS 5-513. These statements were copied verbatim from a Barr Engineering report. Barr 2007l.
540
Ann E. Aust, et al., Morphological and Chemical Mechanisms of Elongated Mineral particle
Toxicities, Journal of Toxicology and Environmental Health, Part B, 14:40-75 (2011) at 53 (quoting
B. Case, On talc, tremolite, and tergiversation, Br. J. Ind. Med. 48:357360 (1991) (attached as
exhibit 24a).
541
Stephen M. Roberts, Report to the Minnesota Dept. of Health: Validation of the U.S. EPA
Database for Fiber Sample Doses Used in Biological Studies at 3 (Sept. 2010) (attached as exhibit
24b).
542
Id. Table 1.
538
126
In 2010, Dr. Stephen Roberts was asked to prepare a report for the Minnesota Department of
Health (MDH) to assess the possibility of determining the toxicity of fibers from the eastern end of
the Mesabi Iron range. As that report points out,
The current approach for evaluating risk from airborne asbestos dates back to 1986 and is
based upon measurement of fibers of a specified size and aspect ratio (i.e., length-width
ratio) using phase contrast microscopy (PCM). There are a number of problems with this
approach related to the technology for fiber detection and measurement [PCM], the way in
which mineral fibers of interest are defined, and the assumption that a single toxic potency
value is adequate to characterize risk from all relevant mineral fiber types.
.....
Further, there is also concern mineral fibers that pose cancer risk by inhalation may be
defined too narrowly, and that a single potency value for asbestos is too simplistic to
adequately cover the variety of fiber sources and exposures that exists.543
Dr. Roberts was tasked with assessing whether the EPA database provided sufficient information to
allow estimates of toxicity of a range of mineral fibers, wholly aside from their categorization as
asbestos. Specifically, Dr. Roberts was asked to answer three questions:
1.
2.
3.
Can the available data be used to provide fiber potency estimates?

Are available data adequate for dose-response modeling?
Is physiologically-based pharmacokinetic (PB-PK) modeling feasible?
The answer to all three questions was yes.544 At the time the report was written, Dr. Roberts noted
that although PB-PK modeling was feasible, it did not yet exist, but that it was being developed
through the Libby Action Plan and would likely be available in the near future.545 Some of that work
has now been done, and was reported on at the Duluth Conference. Thus if the statement in the
NorthMet FEIS that [t]he Co-lead Agencies believe that there is currently incomplete and
unavailable scientific information to characterize the health risk to the public from exposure to
mineral fibers and that the means to obtain such information are not known is true, it is only
because the agencies have failed to investigate and inform themselves of the current state of the
science.
At the Duluth Conference, Acting Division Director Dale Hoff presented the late Phil Cooks work
on calculating fiber potency estimates. The framework was to set the toxicity of UICC amosite
asbestos at a potency of 1.0, and to estimate the relative potencies of other fibers as indicated by
modeling based on the data in the EPA database. To our knowledge this material has not yet been
published, but the methodology and database are available.546
543
Id. at 3, 5.
Id. at 11.
545
Id.
546
Dr. Hoff may be reached at hoff.dale@epa.gov or 218-529-5010.
544
127
The EPA estimates that 0.0004 UICC amosite asbestos fibers per cubic centimeter in ambient air
will result in one additional cancer per 10,000 people.547 While the discussion below relates to cancer
risks, non-malignant health risks can be of even greater concern.548
We recognize that the sum of the various types of fibers that are emitted by the mining industry in
Northeastern Minnesota is likely less toxic than amosite asbestos. However, any assessment of the
impact on public health has to include a discussion of the level of fibers in the ambient air, both
before and during operation of the proposed mine. Information on existing fiber levels is available
from MPCA and MDH. This information should have been included in the FEIS, along with a
comparison to levels in a non-impacted area.
We are submitting two exhibits containing monitoring data for ambient air in Silver Bay, Beaver Bay,
and Babbitt. The most recent data we have for Silver Bay (F1) and Beaver Bay (F7) is contained on
an Excel spreadsheet prepared by MPCA staff and provided to Le Lind on January 24, 2007.549 The
average amphibole fiber count in the ambient air in Silver Bay (F1) in 2006 was 4,998 fibers per
cubic meter.550 The average amphibole fiber count in the ambient air in Beaver Bay (F7) in 2006 was
5,823 fibers per cubic meter. This translates to 0.0050 fibers per cc in Silver Bay and 0.0058 fibers
per cc in Beaver Bay. If these fibers were as toxic as amosite asbestos, this would translate to an
increased cancer risk of 12.5 and 14.5 in 10,000. We are also submitting three sampling data sheets
for monitoring in Babbitt in 2008.551 One had a result of zero; the average of the other two samples
is 8,806 amphibole fibers per cubic meter, or 0.0088 fibers per cc. This would amount to an
estimated increased cancer risk of 22 in 10,000 for amosite asbestos.
Thus even if the sum of toxicity of fibers from Minnesota mines is only one-tenth the toxicity of
amosite asbestos, the ambient air in Minnesota mining communities is already above the EPA
benchmark, which is regarded as an indicator of an acceptable level of risk.552
547
U.S. EPA, Integrated Risk Information System Chemical Assessment Summary for Asbestos
(Sept. 26, 1988) (attached as exhibit 24c). The Minnesota Department of Health (MDH) uses a
benchmark of 1 additional cancer per 100,000 people to arrive at Health Risk Values. Minn. R.
4717.8050(3). Although 0.01 fibers per cubic centimeter is sometimes cited as the Minnesota
standard for asbestos, that standard is used as an indicator of hazard, rather than a chronic health
standard. See Minn. R. 4620.3592(5)(F) (if concentration exceeds 0.01 fibers per cc, the asbestos
work area must be evacuated.)
548
Aubrey Miller, National Institute of Environmental Health Sciences, Geology and Health 101,
Presentation at Duluth Conference (Oct. 6, 2015).
549
MPCA Ambient Air Monitoring Spreadsheet provided to Le Lind on January 24, 2007 (attached
as exhibit 24e).
550
A few samples had results of zero fibers of any variety. We judged these results to be most likely
due to equipment malfunction, and thus omitted them from the calculations.
551
Minnesota Department of Health Environmental Laboratory Final Report for MPCA Air
Quality, (Sept. 30, 2008) (attached as exhibit 24f).
552
See, e.g., MDH, Health Consultation: Residual Soil and Indoor Asbestos Assessment, Western
Mineral Products Site (Feb. 21, 2012) at 8-10 (attached as exhibit 24g).
128
The Minnesota Air Toxics Study published in 2005 reported on monitored levels of listed air toxics
between 1996 and 2001.553 Although the study found that a few substances were present in ambient
air at above the benchmark for an additional 1 in 100,000 increased cancer risk, no substance was
present above the benchmark for an additional 1 in 10,000 increased cancer risk at any location. This
indicates that even if the sum of toxicity of fibers from Minnesota mines is one-hundredth the toxicity
of amosite asbestos, it is still one of the most serious air toxics health issues in Minnesota.
This situation is allowed to continue in part because the State focuses attention on epidemiological
studies in regard to mineral fibers from mining, while for every other toxic substance (and for
mineral fibers from any other industry), allowable levels in the ambient air are based on toxicological
studies. Limitations based on toxicological studies protect the public at a level that is often not
measurable in a local population by epidemiological studies. Given the size of the population, it
would be impossible to detect an increase of one additional cancer in 10,000 people on the Iron
Range, much less assign a cause. And yet discussions of the toxicity of fibers in the ambient air on
the Iron Range and North Shore invariably center on epidemiological studies such as the Minnesota
Taconite Workers Study.
The NorthMet FEIS repeats this pattern.554 Minnesota agencies apparently will not require that
amphibole fibers in the ambient air in Northeastern Minnesota remain below a certain level until the
increase in cancer in the general population is measurable, despite the fact that MDH consistently
rejects such an approach as insufficiently protective of public health. Standard agency practice for
protecting the public from airborne toxins is nowhere to be found in the public discourse regarding
mineral fibers in Northeastern Minnesota.
Any additional health risks from fiber emissions from the NorthMet project would add to what is
already a problematic situation. The existing situation is not one that allows for permitting a new
facility and then monitoring to find out if the fiber level in ambient air in local communities
increases. We are already past that point.
As the NorthMet FEIS acknowledges, amphibole fibers are present in the NorthMet ore. The
discussion of the levels of fibers in the ore attempts to minimize concern without telling us anything
about what the level actually is. The text states that amphibole mineral fibers were found to
represent a relatively small percent of the mineral fibers associated with the processing of NorthMet
Deposit ore; approximately 9 percent of the fibers identified from all collected samples of ore,
tailings, and process water.555 But the text does not tell us the total number of fibers identified or
the volume of ore, tailings, and process water that they were identified in, so 9 percent means
absolutely nothing.
553
MPCA, Minnesota Statewide Air Toxics Monitoring Study (May 2005) (attached as exhibit 24i).
FEIS 5-515 to 5-516 (citing a toxicological study that found non-asbestiform particles to be
cytotoxic, and then countering that with several epidemiological studies).
555
FEIS 5-517.
554
129
The text goes on to say that It is not possible to accurately quantify the amount of fibers that might
be emitted from the facility. This is a curious statement in light of the quantification of emissions
of virtually every other possible pollutant.556 The FEIS provides no explanation or reference for this
statement.
This statement appears to set up a hurdle for the assessment of fiber emissions that is counter to
both NEPA and the other analyses in the FEIS. While we agree that assessments should provide the
greatest degree of accuracy possible, NEPA does not allow agencies to forego an assessment
because it will not meet some undefined level of accuracy. Rather, the agency must use the best
methods and data available, with explanations of the uncertainty involved. Taking an example from
the FEIS itself, the water quality modeling provides estimates of water quality that range over orders
of magnitude. For some of these estimates, there is no correlation between the modeled
continuation of existing conditions and actual existing conditions at the site. Given the
sophistication of air modeling in use today, we find it hard to believe that a similar level of accuracy
is not possible for fiber emissions.
Quantifying emissions involves two steps: measuring fiber levels in rock or process and waste
streams; and applying emission factors and modeling to estimate levels in the ambient air. We found
nothing in the record that indicates either of these cannot be done, and the FEIS does not say which
of these steps makes the analysis impossible. Throughout the FEIS, analogs of other mine pits,
waste rock, river systems, etc. are used where there is a lack of site-specific information. In addition,
values from the Regional Copper Nickel Study are often included in analyses, and were in fact
included in the discussion of fibers. Rough estimates of fiber levels in the ore and of the resulting
impacts on ambient air can be drawn from these sources if more specific information is not available
or obtainable.
In regards to measuring fibers in the ore, the study presented in FEIS reference document Barr
2007l was done for precisely this purpose. We did not find an explanation of why this information
could not be used as a basis for an estimate of the average level of fibers in the ore; if it is because
the data set was not large enough, there is no explanation as to why a larger study could not be done.
If PolyMet wants to perpetuate a lack of site-specific data, a report done for the Copper Nickel
Study (and referenced in the FEIS) provides a comparison between the Duluth Complex and fiber
levels in the Biwabik Formation, which hosts the Peter Mitchell Pit: The Duluth Complex data
show approximately 1/3 the amphibole content of the Biwabik formation. Based on this
comparison, the Duluth gabbro will produce, on an average, concentrations of amphibole
comparable to or less than those of Reserve Mining Company.557
556
See PolyMet 2015e.

FEIS Reference Stevenson 1978 at 20. Stevenson also noted the similarity of the fibers in the two
formations: Some comparison should be made between the Duluth Complex fiber generation
potential and that of the Peter Mitchell Pit. Figure 42 is a comparison of a sample collected by
Bonnichsen (1968) from the Peter Mitchell Pit and a sample from the AMAX test shaft. The
557
130
The authors of the Copper Nickel Study obviously believed that enough was or could be known
about the level of fibers in ore and the fate of those fibers in processing to support modeling of
fiber levels in ambient air.558 While the modeling for the Copper Nickel Study cannot be used
directly for the NorthMet FEIS because the scenario modeled included a smelter and a larger
volume of ore being processed, a similar site-specific modeling effort cannot be impossible for the
NorthMet project. Indeed, the Copper Nickel Study explicitly expected that such an effort would be
undertaken before permitting a particular project: [T]hese estimates simply serve to highlight areas
requiring further investigation. The site- specific considerations for a smelter (and tailing basin) must
clearly address this question in the light of more detailed data. 559
Furthermore, the Stevenson report combined with analog information from the communities
affected by Northshore Mining provides another avenue for a NEPA-level assessment of potential
impacts from the proposed NorthMet mine. We assume that ambient air fiber levels in Babbitt in
2008 stem from the Peter Mitchell Pit; LTV had ceased operating by then, and Mesabi Nuggets had
not yet started. Also, the processing plant in Silver Bay is the only local source of fibers in Silver Bay
and Beaver Bay, so ambient levels in those locations can also provide an analog.
With this in mind, we did a back-of-the envelope calculation. We assume that the NorthMet mine
would process about 80% the amount of ore that Northshore Mining did in 2006,560 and we
acknowledge that the best information available is that the NorthMet ore likely contains about onethird the amount of fibers as the Peter Mitchell Pit. However, at the NorthMet mine, the mine pit
and the processing plant are close enough to each other that they would emit fibers to the same
ambient air, which (based on the consistency between ambient air monitoring in Babbitt and Silver
Bay) would approximately double the amount of fibers from one of the sources alone. This results
in an emissions level of about half that affecting any of the mining communities in 2006 or 2008 (.8
x .33 x 2). Given the current level of fibers in the ambient air, increasing them by 50% without any
attempt to assess the public health implications is unconscionable. And the planned Mesabi Nugget
expansion would likely further add to the problem, depending on its source of taconite.
Rather than disclose this information in the FEIS to inform permitting and other agency decisions,
the Co-lead Agencies propose controls for PM2.5, along with future monitoring. The levels of fibers
present in the air from current mining operations reveal the fallacy of this approach. We have seen
almost forty years of regulation of fibers at Northshore Mining, which has focused on installing
state-of-the-art particulate matter control technology. And while the fiber levels in ambient air are
certainly lower than they would be without that technology, they still present a significant risk to
samples were collected from sites within 10 miles of each other. Notice that the alteration of the
olivine (01) to cummingtonite (c) produces the same acicular crystals.
558
Ingrid Ritchie and Peter J. Kreisman, Regional Copper Nickel Study Vol. III, Chapter 3: Air
Resources at 228 (1979) (attached as exhibit 24h).
559
Id. at 229.
560
Northshores production in 2006 was approximately 5 million tons of pellets. Ex. 24e. Using the
standard 2 to 1 ratio for waste to taconite pellets, this indicates that Northshore processed about 15
million tons of ore in 2006, compared to NorthMets proposed 11.68 million tons per year.
131
public health. Are fugitive dust and particulate emissions control measures planned for the
NorthMet Mine that are not being used at Northshore Mining? If so, why isnt Northshore Mining
using them?
If PolyMet will in fact use the best possible PM2.5 control technology and practices, we fail to see
how monitoring after the mine is built could help. If the agencies find that fiber levels have risen
above a particular level, what action will be taken? What action will even be possible, if the best
possible controls are already being used? It is clear that the State of Minnesota will not shut down an
existing mining operation until epidemiological studies show that people are dying at levels that
cannot be ignored. If state-of-the-art controls are already being used, the decision to permit this
mine is in practicality a decision to accept the fiber emissions that will result and the subsequent
fiber levels in ambient air. And yet the Co-lead Agencies have not even attempted to find out what
those emissions and fiber levels will be.
25.0 Assumptions regarding naturally occurring metals are unwarranted.
The FEIS makes unsupported claims regarding naturally elevated levels of beryllium, manganese and
thallium. The FEIS uses these levels to develop higher evaluation criteria for these constituents than
the U.S. EPAs maximum contaminant levels or the States Health Risk Limit. The U.S. EPA states
that Evaluation criteria in the SDEIS should be set at Minnesotas water quality standards (WQS)
unless evidence based analysis shows that levels are due solely to natural background and not
anthropogenic sources.561 This evidence has not yet been provided.
This issue was raised in our comments on the SDEIS at Friends 12. Our SDEIS comments are
actually respond to the issues mentioned, in violation of 40 C.F.R. 1503.4(a) (agency must
26.0 The FEIS does not take a hard look at the potential for violations of the copper
water quality standard
The FEIS must disclose the potential for violations of the copper water quality standard, accounting
for both the closest point of discharge of groundwater to the Partridge River on the East Pit
Flowpath, and the actual range of hardness values for that stretch of the river. This issue was raised
in our comments on the SDEIS at CBD 8-9. Our SDEIS comments are attached to this objection
561
Alan Walts to Co-lead Agencies, Re: Preliminary Supplemental Draft Environmental Impact
Statement for the NorthMet Mining Project and Land Exchange 7 (August 7, 2013) (attached as
Exhibit 25a).
132
This issue was not addressed in the FEIS Response to Comments, in violation of 40 C.F.R.
1503.4(a) (agency must consider and respond to comments) and 40 C.F.R. 1502.9 (b) (agency must
issues raised).
27.0
The FEIS erroneously ignores degradation of high quality waters.
The FEIS erroneously treats only violations of water quality standards as significant water quality
effects. Degradation of high quality water is also significant. The FEIS must disclose information
about the degradation of high quality waters.
28.0
The FEIS must disclose the fate of chemicals use in mining and processing.
The EIS fails to take the hard look required by NEPA when it does not disclose the fate of
various chemicals used in mining, processing, and other mine processes. This issue was raised in our
comments on the SDEIS at MCEA 77-78; Friends 86. Our SDEIS comments are attached to this
Although the Response to Comments makes note of these concerns, it does not actually respond to
the issues mentioned, in violation of 40 C.F.R. 1503.4(a) (agency must consider and respond to
comments) and 40 C.F.R. 1502.9 (b) (agency must discuss in FEIS any responsible opposing
view, and shall indicate the agencys response to the issues raised).
29.0
The FEIS fails to consider alternative sources of electricity.
The EIS fails to assess alternative sources of electricity with fewer environmental impacts. This
issue was raised in our comments on the SDEIS at MCEA 7, 94-97. Our SDEIS comments are
incorporated herein. This issue was not addressed in the FEIS Response to Comments, in violation
of 40 C.F.R. 1503.4(a) (agency must consider and respond to comments) and 40 C.F.R. 1502.9
(b) (agency must discuss in FEIS any responsible opposing view, and shall indicate the agencys
response to the issues raised).
30.0
The FEIS must assess alternative mitigation measures to reduce greenhouse gas
emissions
The FEIS must include alternative mitigation measures to reduce greenhouse gas emissions. This
issue was raised in our comments on the SDEIS at CBD 86-87. Our SDEIS comments are attached
to this objection letter, and the referenced pages along with all cited materials are incorporated
herein. This issue was not addressed in the FEIS Response to Comments, in violation of 40 C.F.R.
1503.4(a) (agency must consider and respond to comments) and 40 C.F.R. 1502.9 (b) (agency
must discuss in FEIS any responsible opposing view, and shall indicate the agencys response to
the issues raised).
133
31.0 The FEIS must include all greenhouse gas emissions that result from this project in
lifetime totals.
The FEIS fails to take the hard look required by NEPA when it does not include electricity for
water treatment over the long-term (at least 500 years), mine-related transportation, and ore
processing in lifetime greenhouse gas emission estimates for the project. This issue was raised in our
comments on the SDEIS at Friends 69; CBD 86. Our SDEIS comments are attached to this
Although the Response to Comments makes note of these concerns, it does not actually respond to
the issues mentioned, in violation of 40 C.F.R. 1503.4(a) (agency must consider and respond to
comments) and 40 C.F.R. 1502.9 (b) (agency must discuss in FEIS any responsible opposing
view, and shall indicate the agencys response to the issues raised).
32.0
Impacts to wild rice should be assessed for all wild rice habitat.
The FEIS fails to take the hard look required by NEPA by failing to include an adequate survey of
wild rice in the project area and downstream from the project, and by not assessing the impacts of
the project on all aquatic habitat that could support wild rice, rather than just those on the MPCAs
draft list of wild rice waters. This issue was raised in our comments on the SDEIS at MCEA 63-64;
Friends 65. Our SDEIS comments are attached to this objection letter, and the referenced pages
along with all cited materials are incorporated herein. Although the Response to Comments makes
note of these concerns, consider and respond to comments) and 40 C.F.R. 1502.9 (b) (agency must
issues raised).
33.0
The FEIS must disclose the potential impacts on wildlife from the West Pit water.
The FEIS must disclose potential impacts of the polluted West Pit on birds and other wildlife. This
issue was raised in our comments on the SDEIS at Friends 63; CBD 71-72. Our SDEIS comments
are attached to this objection letter, and the referenced pages along with all cited materials are
not actually respond to the issues mentioned, in violation of 40 C.F.R. 1503.4(a) (agency must
34.0
The FEIS does not adequately assess the impacts on wildlife from noise and human
activity.
The FEIS fails to take the hard look required by NEPA when it does not provide an estimate of
the total amount of wildlife habitat that will be degraded due to noise and human activity in addition
to direct losses, fragmentation, and blockage of wildlife corridors. This issue was raised in our
comments on the SDEIS at CBD 72-73. Our SDEIS comments are attached to this objection letter,
134
35.0
The FEIS erroneously dismisses the cumulative impact on visibility in the BWCAW.
The FEIS does not adequately assess the cumulative impact on visibility (regional haze) on the Class
I Areas in the vicinity, particularly the Boundary Waters Canoe Area Wilderness. Visibility in the
BWCAW is significantly impaired already. The FEIS must make it clear that Minnesota is not on
track to meet Clean Air goals for 2016 and 2064, and that PolyMet will contribute the problem along
with dozens of other small contributors. This issue was raised in our comments on the SDEIS at
Friends 70-72; CBD 80-82; NPCA 3-4. Our SDEIS comments are attached to this objection letter,
36.0
The assessment of socioeconomic benefits fails to recognize several important

factors.
The FEIS provides an inadequate review of socioeconomic benefits and impacts. Specific issues
include the reduction in the number of jobs if the autoclave is not built; the ongoing reduction in
workforce due to mechanization in the mining industry; the number of jobs that are likely to be
filled by local residents; tax revenue information; loss of the economic value of ecosystem services;
failure to include economic costs of health and social impacts; reliance on the IMPLAN model,
which exaggerates economic benefits; and the location where many of the predicted benefits will
manifest. These issues were raised in our comments on the SDEIS at MCEA 126; Friends 76-79;
CBD 99-105. Our SDEIS comments are attached to this objection letter, and the referenced pages
along with all cited materials are incorporated herein.
37.0
The Forest Service failed to consider reasonable alternatives to the proposed Land
Exchange.
As explained above, the alternatives section is the heart of the environmental impact statement.562
The purpose of analyzing alternatives is to sharply defin[e] the issues and provid[e] a clear basis for
choice among options by the decisionmaker and the public.563 The Forest Service must rigorously
explore and objectively evaluate all reasonable alternatives.564 The Forest Service must also include
reasonable alternatives not within the jurisdiction of the lead agency.565 The Forest Service failed to
consider and evaluate reasonable alternatives for the proposed land exchange, in violation of NEPA.
37.1
The Forest Service failed to assess a full exchange with restrictions alternative
The FEIS provides very little information about this suggested alternative, other than to state that it
is not substantially different from Alternative B, where the smaller federal parcel exchange would
be protective of the One Hundred Mile Swamp.566 However, Alternative B is not protective of the
562
40 C.F.R. 1502.14.
Id.
564
Id. at 1502.14(a).
565
Id. at 1502.14(c).
566
FEIS at 3-184.
563
135
One Hundred Mile Swamp. The Forest Service could perhaps think more creatively about
restrictions and requirements that could be placed on mining to ameliorate some of the impacts. The
restrictions would not have to apply only to land that will not be impacted by mining. For instance,
the inclusion of reverse osmosis treatment at the Mine Site from start-up, with immediate discharge
within the Partridge River watershed might mitigate some of the impacts on wetlands and the
Partridge River. As the holder of property rights that PolyMet must obtain in order to build a
surface mine, the Forest Service has a significant amount of leverage that it could use to reduce the
environmental impacts of this project. NEPA requires it to take a hard look at using that leverage.
37.2
The Forest Service failed to assess an alternative that does not sacrifice important
public resources, including the Partridge River
In considering a proposed land exchange, the Forest Service is required to give full consideration to
important resource values, including fish and wildlife habitats, cultural resources, and watersheds.567
Therefore, in developing and considering alternatives, the Forest Service should have considered
and evaluated an alternative that focused on preserving and protecting federal resources as much as
possible. This alternative would have included boundaries based on preserving public values instead
of providing PolyMet with the easiest scenario for its proposed mine plan.
For example, this alternative could have drew the boundary so that the Forest Service retained
ownership of riparian areas along the Partridge River. One of the most disturbing things about the
Land Exchange Proposed Action is that the lines have been drawn so that the Forest Service no
longer owns riparian land along that portion of the Partridge River that is most likely to be affected
by the proposed mine. The eastern Mine Site boundary does not extend to the river, but the land
exchange proposal was structured to remove that stretch of the river from federal control. Land was
also added to the Mine Site boundary south of the railroad track to the same effect removing
riparian land from federal control. The FEIS, however, failed to include information about how the
boundaries were drawn and why, and an explanation of the rationale for giving up these riparian
lands.
Given the purpose for which this land was acquired and the emphasis the Forest Service puts on
protecting riparian lands, it is extremely disheartening that the Forest Service proposes to wash its
hands of this river, just when the river most needs monitoring, oversight, and protection. As
discussed above, this stretch of the river has been ignored in the modeling, and is likely to
experience water quality standard violations and drawdown of water levels. Putting the riparian lands
in the mine owners hands is not likely to result in stewardship to prevent or address these impacts,
and in fact the sketchy monitoring plan included in the FEIS does not include monitoring of this
stretch of the river. The difference in acreage between the Proposed Action and a Partridge River
Alternative is not large, but it could make a significant difference to the river. The Forest Service
should consider an alternative that leaves Partridge River riparian lands in federal ownership.
567
36 C.F.R. 254.3(b).
136
It is also troublesome that the Forest Service is exchanging some of its acreage specifically to
accommodate PolyMets emissions. One has to wonder whether the Forest Service would be giving
up additional land if PolyMet was seeking higher emission limits. It is unclear what boundaries were
changed on this basis, but it is particularly objectionable if the additional land includes the Partridge
River, which will undoubtedly experience degradation from the deposition of air pollutants, an
impact that is completely ignored in the FEIS. At any rate, the policy of exchanging as much land as
a polluter requires to attain ambient air quality standards at the property line surely does not well
serve the public interest.
This alternative similarly should have considered drawing the boundaries of the land exchange to
keep other important resources in federal control as much as possible. This includes the 100-mile
swamp, rare plant populations, raptor nests, critical habitat, wildlife corridors, and cultural resources.
Moreover, if federal ownership was not possible or practicable, this alternative also could have
considered conservation easements for these important resources.
Due to explicit requirement that the Forest Service consider the protection of resource values for a
proposed land exchange, the Forest Services failure to consider and evaluate a more protective
alternative that purposefully drew the boundaries of the land exchange to protect the most
important resource values in the planning area violates NEPA.
37.3
The Forest Service Failed to Consider an Alternative in which the Agency Acquires
the Mineral Rights for the Federal Land
The Forest Service must consider an alternative that seeks appropriations from the Land and Water
Conservation Fund (LWCF) to acquire the mineral rights underlying the Federal lands in the Land
Exchange Proposed Action. This is the one alternative that would actually meet the purported
purpose of this project, but was never considered.
In Muckleshoot Indian Tribe v. U.S. Forest Service,568 the U.S. Court of Appeals for the Ninth Circuit
stated,
The plaintiffs also argue that the land could have been purchased outright with funds from
the Federal Land and Water Conservation Fund. While the Forest Service itself cannot
appropriate these funds, it can request them. The record reflects that such a request was
never made, and indeed, this option was not even considered.
The appellees respond that, because it was not clear that the funds would be available for
such a purchase, the Forest Service had no obligation to consider it, as it constituted a
remote and speculative alternative. Vermont Yankee, 435 U.S. at 551, 98 S.Ct. 1197.
However, NEPA regulations state that agencies shall include reasonable alternatives not
within the jurisdiction of the lead agency. 40 C.F.R. 1502.14(c). This alternative clearly falls
within the range of such reasonable alternatives, and should have been considered. We also note that in
568
177 F.3d 800 (9th Cir. 1999).

137
presenting the beneficial cumulative impacts of the exchange, the EIS frequently relies upon
references to admittedly speculative funds that will be used by the Forest Service in restoring
the forest lands that it gains through the transaction. We are troubled by this selective
willingness to rely upon the availability of funding sources beyond the Forest Services direct
control.
The Forest Service also contends that because the purpose of the transaction was to carry
out an exchange and not a purchase, it was not required to consider this alternative.
Seattle Audubon Society, 80 F.3d at 1404) (holding that an agency is not required to examine
alternatives inconsistent with its basic policy objectives). To the extent that Weyerhaeuser
would have been exchanging its lands for federal monies rather than federal lands, we do not
recognize such an inconsistency.569
The same principle should apply here. The Forest Service is authorized to acquire interests in land
or waters with monies from the Land and Water Conservation Fund.570 The Forest Service
promotes using the Land and Water Conservation Fund to provide recreational opportunities,
provide clean water, preserve wildlife habitat, enhance scenic vistas, protect archaeological and
historical areas, and maintain the pristine nature of wilderness areas.571 Many of these values would
be protected through acquisition of the mineral estate in this case. The Forest Service, however,
failed to consider this alternative.
37.4
The FEIS Adopts An Overly-Narrow Purpose and Need Statement for the Co-Lead
Agencies That Improperly Eliminates Reasonable Alternatives.
The Purpose and Need Statements in the FEIS are improperly narrow, resulting in premature
elimination of reasonable alternatives. This issue was raised in SDEIS comments at MCEA 127-130;
Friends 83-85; CBD 106-107, which are attached and incorporated herein.
The Co-Lead Agencies are expected to briefly specify the underlying purpose and need to which
the agency is responding in proposing the alternatives including the proposed action.572 While the
agency is free to take the needs of the project proposer into account, but those private interests
should not define the scope of the purpose and need.
Instead,
Agencies must look hard at the factors relevant to the definition of purpose Perhaps more
importantly [than the need to take private interests into account], an agency should always
569
Id. at 814 (emphasis added).

16 U.S.C. 460l-9(a)(1).
571
U.S. Forest Service, Lands and Realty Management, LWCF Purchases, accessed at
http://www.fs.fed.us/land/staff/LWCF/ on Jan. 1, 2016 (attached as Exhibit 37a).
572
40 C.F.R. 1502.13.
570
138
consider the views of Congress, expressed, to the extent that the agency can determine them,
in the agencys statutory authorization to act, as well as in other congressional directives.573
As the Seventh Circuit has explained, One obvious way for an agency to slip past the strictures of
NEPA is to contrive a purpose so slender as to define competing reasonable alternatives out of
consideration (and even out of existence).574An overly-narrow purpose that focuses on the needs of
the applicant to mine a particular resource has the potential to narrow the range of alternatives to
those that would allow the miners to mine the proposed property.575
The Purpose and Need Statements in the FEIS are categorized by entity, starting with PolyMet.
While it is fine for the Co-Lead Agencies to include PolyMets purpose, it is not appropriate to use
that statement as a basis for defining reasonable alternatives. Nor is it appropriate for the Co-Lead
Agencies to defer to the applicants purpose and need, as noted above.
Then follows the NorthMet Project and Land Exchange Purpose and Need Statement, which
presumably applies to all Co-Lead Agencies.576 The first bullet point is:
For PolyMet to utilize its leased mineral rights and recover commercial quantities and
quality of semi-refined metal concentrates, hydroxides, and precipitates from the
NorthMet ore body in northern Minnesota, and to process the recovered ore by
reutilizing the former LTVSMC processing plant.
This is an improper adoption of PolyMets purpose and need statement, as described above. This is
PolyMets purpose and need, not the co-lead agencies.
The third bullet point is:
To extract and process metals in a technically and economically feasible manner, such
that there would be sufficient income to cover: operating cost (which includes but is not
limited to the cost of mining, processing, transportation, and waste management), capital
cost (needed to build and sustain facilities), an adequate return to investors, reclamation,
and closure costs and taxes.
This is also an improper purpose and need statement for the Co-Lead Agencies. Putting an
emphasis on whether PolyMets venture is profitable emphasizes PolyMets investors over
environmental concerns. It is clearly designed to eliminate reasonable alternatives such as
573
Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C.C. 1991), cert. denied 502 U.S. 994;
quoted by National Parks & Conservation Assn v. Bureau of Land Mgmt., 606 F.3d 1058, 1070 (9th Cir.
2009).
574
Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664, 666 (7th Cir. 1997).
575
Sierra Club v. Antwerp, 709 F.Supp.2d 1254, 1269 (S.D. Florida 2009) (affd 362 F. Appx. 100 (11th
Cir. 2010).
576
FEIS 1-11.
139
underground mining and the West Pit backfill from consideration, rather than to allow neutral
assessment of those alternatives.
By referencing the companys plan, the companys profitability, and the companys processing plant,
the agencies do not allow themselves any alternatives. They certainly do not allow for ore to come
from any seam but the one identified by Polymet.
B. Federal Land Policy and Management Act

Pursuant to the Federal Land Policy and Management Act (FLPMA), a land exchange is only
permissible where the Forest Service determines that the public interest will be well served by
making that exchange.577 When considering the public interest, the Forest Service must give full
consideration to better Federal land management and the needs of State and local people, including
needs for lands for the economy, community expansion, recreation areas, food, fiber, minerals, and
fish and wildlife.578 The Forest Service must find that the values and the objectives which Federal
lands or interests to be conveyed may serve if retained in Federal ownership are not more than the
values of the non-Federal lands or interests and the public objectives they could serve if acquired.579
Similarly, under Forest Service regulations, the Forest Service may complete a land exchange only
after determining that the land exchange will serve the public interest.580 In considering the public
interest, the Forest Service must give full consideration to the opportunity . . . to secure important
objectives, including but not limited to: protection of fish and wildlife habitats, cultural resources,
watersheds, wilderness, and aesthetic values.581 In order to determine that the land exchange would
serve the public interest, the Forest Service must find that the resource values served by the nonfederal lands must equal or exceed the resource values served by the federal lands to be
conveyed.582
38.0 The Forest Service Failed to Consider Relevant Factors Prior to Making Its Public
Interest Determination.
The Forest Service regulations provide factors that the agency must consider when considering the
public interest for a proposed land exchange, including the protection of fish and wildlife habitats,
cultural resources, watersheds, wilderness, and aesthetic values.583 The Forest Services decision
must be based on a consideration of the relevant factors, and is arbitrary and capricious if the agency
fails to consider an important aspect of the problem. The Forest Service failed to consider a
577
43 U.S.C. 1716(a).
Id.
579
Id.
580
36 C.F.R. 254.3(b).
581
36 C.F.R. 254.3(b)(1).
582
36 C.F.R. 254.3(b)(2).
583
36 C.F.R. 254.3(b)(1).
578
140
number of relevant factors prior to making its public interest determination for the proposed land
exchange.584
The Forest Service has failed to survey and assess the non-federal lands in sufficient detail to allow it
to adequately consider the impact of the land exchange, or to compare the resources on the nonfederal lands with the federal lands that would be exchanged. For a number of important resources,
the Forest Service simply does not know enough about the non-federal lands that would be acquired
through the exchange to allow a comparison in value. For instance:
The Forest Service does not know whether the federally threatened northern long-eared
bat is present on the non-federal lands, even though the bat is present on the federal lands
and would be adversely impacted by the NorthMet mine.585
The Forest Service does not know whether a number of sensitive species such as the great
gray owl are present on the non-federal lands, even though sensitive species are present on
the federal lands and would be adversely impacted by the NorthMet mine.586
The Forest Service does not know whether sensitive and imperiled plant species are
present on the non-federal lands, even though numerous imperiled plant species are present
on the federal lands and would be adversely impacted by the NorthMet mine.587
The Forest Service does not know whether the vast majority of non-federal lands include
any imperiled or vulnerable vegetation or habitats, even though hundreds of acres of
imperiled and vulnerable habitat are present on the federal lands and would be adversely
impacted by the NorthMet mine.588
The Forest Service does not know whether cultural resources are present on the nonfederal lands, even though cultural resources are present on the federal lands and would be
adversely impacted by the NorthMet mine.589
584
Motor Vehicle Mfrs Assoc. v. State Farm, 463 U.S. 29, 43 (1983).
FEIS at 4-582; FEIS, Appendix D, BE at Table 1 (no known occurrences of northern long-eared
bat).
586
FEIS, Appendix D, BE at Table 1 (no known occurrences of great gray owl, boreal owl, bald
eagle, three-toed woodpecker, or little brown myotis).
587
FEIS at 4-544; FEIS, Appendix D, BE at 4-4 (stating that an assessment of Forest Service
sensitive plant species was not conducted for the non-federal lands).
588
FEIS at 4-546, 4-554, 4-556 (noting that one vegetation community (sugar maple) on the Lake
County South parcel, which comprises 8% of the 116 acre parcel, has been characterized as
vulnerable in the state), 4-559, 4-561, 4-567, 4-568, 4-571.
589
FEIS at 4-628; DROD at 17 (acknowledging that the non-federal lands have not been surveyed
for cultural resources).
585
141
The Forest Service does not know the quality of the groundwater for the non-federal
lands.590
The Forest Service does know the surface water quality of the non-federal lands.591
The Forest Service did not conduct any aquatic surveys or studies on the non-federal
lands.592
Additionally, there is no indication that the Forest Service considered the fact that much of the
federal lands that would be exchanged qualify as an Aquatic Resource of National Importance
(ARNI).593
Without an understanding and consideration of these directly relevant factors, the Forest Service is
unable to determine the impact of the proposed land exchange on wildlife habitats, cultural
resources, watersheds, and other resources as required. The Forest Service is also unable to
determine whether or not the resource values of the non-federal lands equal or exceed the resource
values of the federal lands that would be conveyed. As a result, the agencys decision to proceed with
the land exchange would be arbitrary, capricious, and in violation of its own regulations.594
39.0 The Land Exchange would significantly degrade fish and wildlife habitat, cultural
resources, and watersheds by facilitating and allowing the NorthMet Project.
In considering the public interest, the Forest Service must give full consideration to whether the
land exchange would secure important objectives, including the protection of fish and wildlife
habitats, cultural resources, [and] watersheds.595 The proposed land exchange would do the very
opposite of securing these important objectives, as it would facilitate and allow the environmental
destructive NorthMet mine to proceed on the federal lands that would be exchanged. In
considering the public interest, however, the Forest Service fails to compare the anticipated impacts
to fish and wildlife habitats, cultural resources, and watersheds with and without the land
exchange.596
FEIS at 4-470 (There are no known, site-specific groundwater quality data for any of the nonfederal Land Exchange Propsed Action lands).
591
FEIS at 4-471 (Little, if any, hydrologic or water quality data has been collected for any of the
tracts).
592
FEIS at 4-597, 4-603.
593
See Bharat Mathur to Col. Jon Christenson, Re: NorthMet Project Draft Environmental Impact
Statement 17 (Feb. 18, 2010) (EPA believes the coniferous and open bogs, comprising a large
percentage of the approximately 33,880 total wetland acres within the Partridge River Watershed to
be an ARNI due the values they provide in terms of unique habitat, biodiversity, downstream water
quality, and flood control) (attached as Exhibit 38a).
594
Motor Vehicle Mfrs Assoc., 463 U.S. at 43.
595
36 C.F.R. 254.3(b)(1).
596
See Center for Biological Diversity v. U.S. Dept. of Interior, 623 F.3d 633, 647 (9th Cir. 2010) (finding land
exchange and public interest determination arbitrary and capricious where agency failed to consider
590
142
If the Forest Service proceeds with the land exchange, the significant, long-term and irreversible
impacts to numerous resources are clear and unmistakable, as documented throughout this
objection and prior comments, including:
1454 acres of destruction of Canada lynx critical habitat;597
1454 acres of destruction of gray wolf critical habitat;598
a significant increase in vehicle and train traffic, resulting in impacts to wildlife including
Canada lynx and gray wolf;599
1716 acres of destruction of northern long-eared bat habitat;600
2786 acres of destruction of key habitat types for moose;601
a known northern goshawk nest site destroyed;602
habitat and a nest site used by great grey owls destroyed;603
adverse impacts to important wildlife corridors;604
direct destruction of 1535 acres of mature forest at Mine Site;605
direct destruction of local populations of 7 state-listed plant species, and indirect impacts
to 2 additional state-listed plant species;606
914 acres of high quality wetlands directly destroyed, including 758 acres at the Mine Site,607
with many thousands of additional acres of wetlands indirectly affected, including adjacent
Forest Service lands;608
1718 acres of destruction of sites of High Biodiversity Significance, including 353 acres of
the One Hundred Mile Swamp;609
698 acres of destruction of imperiled and/or vulnerable native plant communities;610
significant, adverse effects on cultural resources and 1854 Treaty Resources.611
In addition, as described in the above sections on NEPA issues, the project poses many significant
risks to water quality, most of which are not assessed or disclosed in the FEIS.
an accurate picture of what the environmental consequences would be with and without the
proposed land exchange).
597
FEIS at 5-436.
598
FEIS at 5-437.
599
FEIS at 5-436, 5-437, 5-443.
600
FEIS at 5-438.
601
FEIS at 5-439.
602
FEIS at 5-440.
603
FEIS at 5-449.
604
FEIS at 5-447, 5-448.
605
FEIS at 5-444.
606
FEIS at 5-417.
607
FEIS at 5-255, 5-447.
608
FEIS at 5-257, 5-283.
609
FEIS at 5-411.
610
FEIS at 5-411.
611
DROD at 16-17; FEIS at 5-572, 5-573.
143
If the Forest Service does not proceed with the land exchange, on the other hand, according to the
Forest Service the likely impacts to these same resources would be negligible to non-existent. The
Forest Services position is that without the land exchange, the proposed mine could not proceed, as
an open pit mine is not allowed on these federal lands.612 Moreover, there is no indication in the
record that any reasonably foreseeable environmental impacts are anticipated on the non-federal
lands, which would remain in their current ownership absent the land exchange.
If considered objectively, with full knowledge of what this land exchange means on the ground for
the federal lands, there is no question that fish and wildlife habitat, cultural resources, and
watersheds will be considerably worse off if the land exchange proceeds. The land exchange would
entail the largest wetlands destruction in the states history, two square miles of critical habitat
destruction for lynx and wolves, the elimination of nest sites for sensitive species, the destruction of
numerous imperiled plant populations, major impacts to a recognized Aquatic Area of National
Importance and areas of High Biodiversity Significance, and significant impacts to cultural resources.
Without the land exchange, there are no anticipated environmental impacts on the federal or nonfederal lands.
40.0 The Resource Values of the Non-Federal Lands Do Not Equal or Exceed the
Resource Values of the Federal Lands to be Conveyed.
In order to determine that a proposed land exchange is in the public interest, the Forest Service
must find that the resource values and public objectives served by the Nonfederal lands to be
acquired are equal or exceed the resource values and public objectives of the Federal lands to be
conveyed.613 For the proposed land exchange with PolyMet, it is clear that the resource values and
public objectives served by the Federal lands far outweigh the less certain and unknown values and
objectives served by the Nonfederal lands.
As described above, the Federal lands that would be exchanged provide very high resource values.
The lands include important designated critical habitat for lynx and wolves, including access to one
of the few remaining wildlife travel corridors across the Mesabi Iron Range, which presents a
significant obstacle to wildlife movement from northwest to southeast of the Range. The Federal
lands also provide over 1700 acres of habitat for the federally threatened northern long-eared bat,
and nearly 2800 acres of habitat for the states declining moose population, along with exceedingly
rare nest sites of northern goshawk and great gray owls.
In comparison, while the Nonfederal lands include designated critical habitat for lynx and wolves,
there have been far fewer signs or sightings of individuals utilizing these lands.614 Moreover, no
612
DROD at 1 (The USFS has taken the position that the mineral rights that were reserved when
lands were conveyed to the United States in 1935 do not include the right to surface mine as
proposed by PolyMet).
613
36 C.F.R. 254.3(b)(2)(i).
614
FEIS at 4-582, 4-585, 4-587, 4-589 (stating that no lynx or their sign have been observed on the
non-federal lands during surveys).
144
northern long-eared bats have been observed on the non-federal lands.615 No information is
provided on great gray owls. And while these lands may add acreage to an existing northern
goshawk nesting territory,616 it will not replace the nesting territory that will be lost. Regarding
moose, most of the Nonfederal lands are located outside of what the Minnesota DNR considers to
be remaining viable moose habitat.617
The Federal lands are also important for several very rare plant species, including the state-listed
endangered floating marsh marigold; at least nine different species are found on the site. The
Nonfederal lands, on the other hand, are not known to contain any of these species.618
The Federal lands also contain over 4000 acres of very high-quality wetlands, including significant
portions of the One Hundred Mile Swamp and most of the Upper Partridge River headlands, both
of which have been rated as being of High Biodiversity Significance.619 Over 93% of these wetlands
are rated high value, with coniferous bogs comprising 47% of the wetlands.620 The area is of such
significance that EPA has found it qualifies as an Aquatic Resource of National Importance
(ARNI).621 While the Nonfederal lands also include over 4000 acres of wetlands, the FEIS does not
reveal how much of that acreage is coniferous bog, which as explained above humans have yet to
find a way to recreate and which is uniquely threatened by global warming. The One Hundred Mile
Swamp and Upper Partridge River headlands constitute a very large wetland complex whose value
cannot be matched by smaller patches of wetlands. And while wetlands on the Nonfederal lands are
also rated as high quality, a closer reading indicates that these wetlands are not of similar value to
those on the Federal lands. Coniferous swamps are largely immature forest, and the Nonfederal
lands include 500 acres more of shrub swamp than do the Federal lands.622 Does the Forest Service
really believe that alder thicket is of the same value to the public as a large, mature conifer bog?623
615
FEIS at 4-582, 4-585, 4-587, 4-589.

FEIS at 4-582.
617
See Glenn D. DelGiudice, 2015 Aerial Moose Survey 2 (attached as Exhibit 20c).
618
FEIS at 4-543.
619
FEIS at 4-491, 4-496.
620
FEIS at 4-496, 4-497.
621
Bharat Mathur to Col. Jon Christenson, Re: NorthMet Project Draft Environmental Impact
Statement 17 (Feb. 18, 2010) (attached as Exhibit 38a).
622
Compare FEIS 4-496, Table 4.3.3-1 and FEIS 4-511, Table 4.3.3-4.
623
See Michigan Natural Features Inventory, Northern Shrub Thicket (2014), accessed at
http://mnfi.anr.msu.edu/communities/community.cfm?id=10677 on January 1, 2016 (In the
Great Lakes region, northern shrub thicket is a widespread community type that has dramatically
increased in acreage from its historical extent due to anthropogenic disturbance. The increase in
northern shrub thicket is the result of extensive logging of swamp forests, alteration of hydrologic
regimes, and fire suppression.) (attached as Exhibit 40a); Michigan Natural Features Inventory,
Muskeg (2014), accessed at http://mnfi.anr.msu.edu/communities/community.cfm?id=10678 on
Jan. 1, 2016 (Anthropogenic disturbance has decreased the extent of peatlands and dramatically
altered many occurrences. Turn-of-the-century logging of tamarack, black spruce, and cedar from
peatland systems favored the conversion of forested peatlands to open, ombrotrophic bogs and
muskegs.) (attached as Exhibit 40b).
616
145
There are also well-known cultural resources found on the federal lands, including the Mesabe
Widjiu (Laurentian Divide), Spring Mine Lake Sugarbrush, and Beaver Bay Lake Vermillion Trail
Segment. The non-federal lands, on the other hand, have no known cultural resources, and have not
been surveyed.624
The entire mine site within the federal lands is considered an area of high biodiversity
significance,625 a designation that also applies to 94% of the 6650 acres that would be disposed of.626
Twenty-three percent of the ecosystems on the federal lands are considered imperiled or vulnerable,
while none of the non-federal lands contain comparable resources.
In sum, based on what is known and understood by the agencies concerning the resources on the
Federal and Nonfederal lands, including wildlife habitat, plants, vegetation, wetlands, and cultural
resources, it is clear that the public resource value of the Federal lands exceeds that of the
Nonfederal lands. It is also clear that important cultural resources will be lost due to the land
exchange, and that no known cultural resources exist on the Nonfederal lands.627 Key factors
considered by the Forest Service in the public interest decision notably do not include biodiversity
or wildlife, and the Forest Service appears to be elevating public access over these values in its
determination to have the public interest balance come out in a predetermined way. Also, we note
that some of the lands involved in the land exchange are also not accessible to the public, and
reiterate that the lack of public access to some areas of the forest is a boon to wildlife, including lynx
and wolves. Finally, the consideration of the consolidation of lands, efficient management and
consolidation of split estates ignores the negative aspects of the land exchange, which include
further isolating two smaller parcels of Forest Service land and locating a wastewater discharge with
high risks of polluting waters on national forest land. The reduction in Forest boundary is too
negligible to be considered an important factor in the public interest review. And as discussed below
in Section 51, some of the Nonfederal lands cannot be considered low risk for mineral development.
In sum, the Forest Service has elevated the factors involved in the public interest review that it
believes supports the land exchange, and has minimized the factors that do not. This obvious ploy
to make the public interest test come out in a predetermined way is not what is intended by FLPMA,
and is thus beyond agency discretion and not in accordance with applicable law.
624
DROD at 16-17.
FEIS at 4-201, 4-205.
626
FEIS at 4-533.
627
The DROD refers to the possible existence of cultural resources on the Nonfederal lands in an
apparent attempt to balance the loss of known resources on the Federal lands. DROD 17. However,
the FEIS reveals no reason to believe that such resources exist. The Forest Service cannot take
advantage of its failure to survey the Nonfederal lands in speculation that that they might be as
valuable as the Federal lands.
625
146
41.0 The intended use of the conveyed federal lands would substantially conflict with
management objectives on adjacent federal lands.
In order to determine that a proposed land exchange is in the public interest, the Forest Service
must also find that [t]he intended use of the conveyed Federal land will not substantially conflict
with established management objectives on adjacent Federal lands.628 The intended use of the
lands at issue here is an open-pit copper sulfide mine, which would substantially conflict with
management objectives on adjacent land. The land exchange thus cannot go forward as planned.
The Superior National Forest Land and Resource Management Plan (Forest Plan) includes
management objectives for specific resources that apply forest-wide,629 which would include the
lands adjacent to the NorthMet mine site. Objective O-WS-1 is to Improve and protect watershed
conditions to provide the water quality, water quantity, and soil productivity necessary to support
ecological functions and intended beneficial water uses.630 As explained in other parts of this
document and in past comments, the NorthMet mine as planned would increase mercury in that
portion of the Partridge River that will continue to run through national forest property, through
both air deposition and groundwater transport from the Overburden Storage and Laydown Area
(OSLA) and other mine features. The groundwater flowpaths transporting mercury and other
pollutants will enter national forest property and discharge to the river on national forest property.
The Partridge River is already impaired for mercury; it does not meet the numeric water quality
standard to protect wildlife. Any additional mercury in this stretch of the river would conflict with
the management objective of protecting watershed conditions to provide the water quality necessary
to support ecological functions and intended beneficial water uses.
We also explain in other parts of this document and in past comments that mining will increase
sulfur in the wetlands feeding the Partridge River. This increased sulfur will increase mercury
methylation in the wetlands, which will be flushed out during snowmelt and high rainfalls. This will
increase the mercury that is bioavailable to aquatic organisms and the wildlife that eat them, and this
would include the stretch of the Partridge River that will continue to cross national forest land. As
with mercury, the amount of sulfur likely to be added to wetlands (the FEIS estimates an increase of
1.7 mg/L) by the mine would conflict with the management objective of protecting watershed
conditions to provide the water quality necessary to support ecological functions and intended
beneficial water uses.
We also explain in other places that some of the highest levels of air deposition of heavy metals will
cross over onto Forest Service land, and that land contains riparian wetlands along the Partridge
River. The FEIS does not provide adequate information to assess the impacts of this deposition,
despite that admission that it could impact wetland water quality.
628
36 C.F.R. 254.3(b)(2)(ii); DROD at 17.

U.S. Forest Service 2004b at 1-8.
630
Forest Plan 2-12.
629
147
We repeat what we have said many times in other contexts: the FEIS does not provide sufficient
information to allow a determination that the mine will not conflict with this management objective.
The FEIS has not assessed the addition of mercury to the Partridge River from the OSLA, despite
substantial evidence that peat sequesters mercury, and excavation of that peat releases it. The FEIS
has not assessed the addition of mercury to the Partridge River from air deposition, despite the fact
that the necessary information clearly exists and has been used to assess inputs to downstream lakes.
The FEIS has not assessed the increase in mercury methylation, despite admitting that it is a
concern. The FEIS has not assessed the increase of metals such as copper to the Partridge River
from air deposition, despite admitting that upstream wetlands may be impacted. The DROD relies
repeatedly on what the analysis in the FEIS indicates,631 but for many issues, the FEIS does not
provide the data or analysis to support its conclusions. The DROD also repeats the assumption that
regulatory requirements for the protection of the environment and human health will be met,632
but it is unclear that any agency plans to protect water quality from air emissions, or what law they
would use to do so.
The national forest land adjacent to the conveyed lands is also managed as Canada lynx habitat.
Management objectives for lynx habitat include O-WL-11, Maintain and, where necessary and
feasible, restore sufficient habitat connectivity to reduce mortality related to roads and to allow lynx
to disperse within and between LAUs and between LAUs and Boundary Waters Canoe Area
Refugium on NFS land; and O-WL-12, Through partnerships with other agencies and landowners,
participate in cooperative efforts to identify, map, and maintain or restore, where feasible, linkage
areas that provide habitat connectivity sufficient to allow lynx to disperse between disjunct blocks of
lynx habitat at larger landscape scales (for example, among National Forests in the Great Lakes
region).633 The new mine and all its features will create a very significant barrier between lynx
habitat on adjacent federal land and the few remaining corridors that allow for lynx movement from
this part of the forest to the BWCA and other lands to the north of the Mesabi Iron Range. Lynx on
the federal land to the south of the proposed conveyance lands can currently make their way
northward to the wildlife corridors; they are unlikely to do so once the mine is built. Furthermore,
traffic on the road on the edge of the adjacent lands will increase exponentially. It is difficult to see
how this will allow the Forest Service to maintain . . . sufficient habitat connectivity to reduce
mortality related to roads and to allow lynx to disperse on or from the adjacent lands, on either the
forest or the larger landscape scale.
Finally, although this is not stated as a management objective in the Forest Plan, the Forest Service
makes much of the purported isolation of the land to be conveyed. But the land exchange would
leave far more isolated pieces of national forest property than the land to be conveyed is now.
Portions of T59N, R12W, Sections 6 and 7 will remain as an almost completely isolated piece of the
forest. Similarly, T59N, R13W, S19 will lose its connection to other national forest property to the
north, and will become almost wholly isolated.634 These lands will lose much of their value as wildlife
631
E.g., DROD 18.

Id.
633
Forest Plan 2-29.
634
FEIS 4-453 (Figure 4.3.1-1).
632
148
habitat, the maintenance of which is presumably a management value on all undeveloped national
forest property. Their size will also make them more difficult to manage for timber.
Because the use of the lands to be conveyed would conflict with protection of water quality and with
management objectives for wildlife on adjacent lands, the land exchange must be denied pursuant to
36 C.F.R. 254.3(b)(2)(ii).
42.0
The Forest Service has failed to demonstrate equal value.
Pursuant to FLMPA, [t]he values of the lands exchanged . . . either shall be equal, or if they are not
equal, the values shall be equalized by the payment of money . . . so long as payment does not
exceed 25 per centum of the total value of the lands or interests being transferred out of Federal
ownership.635 The Forest Service regulations also require:
[L]ands or interests to be exchanged must be of equal value or equalized in accordance with
the methods set forth in 254.12 of this subpart. An exchange of lands or interests shall be
based on market value as determined by the Secretary through appraisal(s), through
bargaining based on appraisal(s), through other acceptable and commonly recognized
methods of determining market value, or through arbitration.636
According to the Draft ROD, the proposed land exchange meets the value requirements of 36
CFR 254.3. The Forest Service states that [t]he federal lands have an appraised value of $3,658,000
and the non-federal lands have an appraised value of $4,083,000. As a result, [a] cash equalization
payment of $425,000 will be made to the non-federal party as provided under 36 CFR 254.12.637
Even though an appraisal has apparently been completed for the proposed land exchange, the
Forest Service has not disclosed the appraisal to the concerned public with the Final EIS, the Draft
ROD, or even through the Freedom of Information Act. The appraisal must be disclosed to allow
the public to determine whether the Forest Service is meeting its land exchange requirements; the
agencys failure to provide this fundamental and directly relevant information in the EIS violates
NEPA.638
The Forest Services refusal and failure to provide the appraisal in the Draft ROD and during the
objection process further violates FLMPA and the Forest Services regulations, as the Forest Service
635
43 U.S.C. 1716(b).
36 C.F.R. 254.3(c).
637
DROD 8.
638
40 C.F.R. 1502.2 (an EIS must state how alternatives considered will or will not comply with
environmental laws and policies); 40 C.F.R. 1506.6 (agencies must make EISs and the underlying
documents available to the public); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349
(1989) (NEPA guarantees that the relevant information will be made available to the larger
audience that may also play a role in both the decisionmaking process and the implementation of
that decision); Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1214 (9th Cir.
1998) (The EIS is where the Forest Service's defense of its position must be found).
636
149
is unable to demonstrate that the federal and non-federal lands are in fact of equal value.639 The
public is unable to effectively object to whether or not the Forest Service has complied with the
relevant factors in preparing the appraisal, as provided by the Forest Services regulations,640 when
the appraisal is undisclosed. For instance, without the appraisal, it is unknown whether the Forest
Service has appropriately estimated market value, including determining the highest and best use of
the property, considered wildlife, cultural, and other resource values, and properly considered
mineral values. The Forest Services regulations require that the findings and supporting rationale
for a proposed land exchange be documented and included in the administrative record for the
agencys decision.641
C. National Forest Management Act
The National Forest Management Act (NFMA) establishes a two-step process for forest planning.
First, NFMA requires the Forest Service to develop and maintain a Forest Plan for each unit of the
National Forest System. . . . Second, under NFMA, the Forest Service implements each Forest Plan
by approving or disapproving site-specific actions. 642 All proposed projects must be consistent
with the overall forest plan.643 This requirement is reinforced by Forest Service regulation:
Projects and activities authorized after approval of a plan, plan amendment, or plan revision must
be consistent with the plan.644 Pursuant to these requirements, projects and activities on the
Superior National Forest are governed by the Superior National Forest Land and Resource
Management Plan (Forest Plan).645 The proposed NorthMet land exchange is not consistent with the
Forest Plan, and thus would violate NFMA.
This issue was raised in our comments on the SDEIS at Friends 80 and CBD 142. However, we
reiterate our position that the Forest Service cannot limit public input on its substantive decisions to
the NEPA comment period. The CEQ regulations do not limit the time in which the public may
submit comments. Rather, they provide that a minimum amount of time must be given, and that if
comments are received during that period, they must be responded to in the FEIS. Attempting to
use that time frame as a limit on what input the agency will consider (and what issues the public will
be able to litigate) is a perversion of the intent of the CEQ regulations.
43.0 The Forest Service must consider the impacts of the proposed mine when considering
consistency with the Forest Plan.
It is unclear to what extent the Forest Service takes the position that the impacts from the proposed
mine should not be considered when determining consistency with the Forest Plan. For example, we
pointed out in our comments on the SDEIS that the proposed land exchange is inconsistent with
43 U.S.C. 1716(b); 36 C.F.R. 254.3(c); 36 C.F.R. 254.9.
36 C.F.R. 254.9.
641
36 C.F.R. 254.3(b)(3).
642
Native Ecosystems Council v. U.S. Forest Service, 418 F.3d 953, 957 n. 1 (9th Cir. 2005).
643
Id., citing 16 U.S.C. 1604(i).
644
36 C.F.R. 219.15(b). See also Sierra Club v. Robertson, 28 F.3d 753, 755 (8th Cir. 1994).
645
See 16 U.S.C. 1604; FEIS Reference USFS 2004b.
639
640
150
Forest Plan D-WS-4 in regard to wetlands (further discussed below). The FEIS response to this
comment states, The conveyance and acquisition of lands under either the Land Exchange
Proposed Action or Land Exchange Alternative B would not result in wetland impacts. The mining
activities of the NorthMet Proposed Action would result in wetland effects . . .646 Thus the Forest
Service apparently takes the position that the land exchange would not be the direct cause of the
many environmental impacts of the proposed mine, and that therefore the effects of the mine
should not be considered in the determination of whether the land exchange is consistent with the
Forest Plan.647 The Forest Services position is internally inconsistent and ignores NFMAs
consistency requirement.
The Forest Services position is inconsistent with its stated need and purpose for the land
exchange. As justification for the land exchange, the Forest Service cites Forest Plan Desired
Condition D-MN-2, Ensure that exploring, developing, and producing mineral resources are
conducted in an environmentally sound manner so that they may contribute to economic growth
and national defense.648 But under the Forest Services apparent stance on the irrelevance of the
forest plan to the effects of mining, the exploration, development, and production of mineral
resources would also not be an outcome of the land exchange. To paraphrase the Response to
Comments, The conveyance and acquisition of lands under either the Land Exchange Proposed
Action or Land Exchange Alternative B would not result in [production of minerals]. The mining
activities of the NorthMet Proposed Action would result in [production of minerals].649
The Forest Service cannot have it both ways. The only real reason for the land exchange is to allow
for the production of minerals according to PolyMets preferred method. The production of
minerals and the effects of mining are inseparable outcomes of the same activity. The Forest Service
cannot rely on the Forest Plan to support what it sees as the benefits of mining, but ignore the
Forest Plan in regard to the detriments.
In the FEIS, the Forest Service has put its name on a document that ostensibly details the
environmental effects of the proposed land exchange. The entire point to this exercise is to inform
the Forest Services decision on whether to go forward with the exchange, which is governed by the
Forest Plan. In regards to the Forest Service, the decision pursuant to the Forest Plan is the decision
for with the FEIS was prepared. Taking the position that the effects indicated in the FEIS are not
applicable to the decision pursuant to the Forest Plan ignores the agencys recognition that the land
exchange and mine are connected actions, with the mine unable to proceed without the land
646
FEIS A-397.
The conveyance and acquisition of lands under either the Land Exchange Proposed Action or
Land Exchange Alternative B would not result in wetland impacts. The mining activities of the
NorthMet Proposed Action would result in wetland effects that cannot be avoided, although these
losses would be minimized and/or compensated for. PFEIS App. A-391.
648
FEIS 1-12, quoting Forest Plan 2-9.
649
FEIS App. A-397.
647
151
exchange.650 In saying that the effects of mining are not the effects of the land exchange, the Forest
Service is in essence saying that the effects detailed in the FEIS are not pertinent to its decision.
Finally, what is required of the land exchange pursuant to NFMA is consistency with the Forest
Plan. The requirement is not limited to compliance with specific directives, but includes a broader
consideration of the desired conditions and objectives of the plan as a whole.651 Encouraging and
facilitating the construction of a mine through a land exchange is inconsistent with the Forest Plan if
the mine will move a part of the forest away from the plans desired conditions and objectives.
The Proposed Land Exchange would be inconsistent with the provisions of the Forest Plan
discussed below.
44.0
The Land Exchange is inconsistent with Air Quality provisions.
Forest Plan desired conditions for air quality include D-AQ-1, Air on the Forest is of high quality
so that: Ecosystems are not impaired by stressors originating in the air (for example, acid deposition,
direct injury to vegetation by air pollutants, detrimental changes to soil chemistry and mercury
contamination of fish), and D-AQ-2, New and modified industrial facilities do not degrade Forest
resources or uses.652 The land exchange to allow for a mine as currently proposed would be
inconsistent with these provisions.
First, the mine as proposed would increase mercury contamination of fish and other aquatic
organisms, which would in turn affect wildlife that feed on them. Although this information was not
included in the FEIS itself, FEIS Reference PolyMet 2015e, Att. U includes mercury deposition
modeling of the Partridge River watershed. And although the analysis neglects to inform us about
the increase of mercury to the Partridge River, that increase would be between 5.88 and 21.06 grams
per year.653 The estimated current load to the Partridge River is 24.2 grams per year; the increased
load from the NorthMet project would increase that by at least 20%. This river is already impaired
for mercury, with an average mercury level of 2.3 to 5.4 ng/L,654 compared to the water quality
standard of 1.3 ng/L, which is set to protect wildlife that eat fish and other aquatic organisms.
In addition, as explained in CBDs comments on the SDEIS, deposition of heavy metals, including
copper, from the mine site to the Partridge River may significantly impact aquatic habitat. Because
the Co-lead Agencies have not required modeling, we do not know how much of these metals will
end up in the Partridge River, or what the impact on water quality and aquatic systems will be.
650
FEIS at ES-7 (land exchange is a connected action); FEIS at 1-12 (in the absence of the land
exchange, the NorthMet mine cannot be authorized on the Superior National Forest).
651
See, e.g., Oregon Natural Desert Assn. v. Sabo, 854 F. Supp. 2d 889, 917 (D. Or. 2011) (the Forest
Service's issuance of an AOI is an action which must be consistent with the Forest Plan as a whole,
not just the standards and guidelines contained within it).
652
Forest Plan 2-9.
653
See Section 16.0 above.
654
FEIS 4-89.
152
Without this information, the Forest Service has no basis to find that air deposition will not impact
ecosystems.655
Emissions from the NorthMet mine would also increase the deposition of sulfur to wetlands in
some of the same areas that would also see an increase in mercury deposition. As explained above,
this is virtually certain to increase the methylation of mercury, with subsequently higher mercury
levels in downstream fish and other aquatic organisms.
The effects of these emissions will extend to national forest land. Water resources on national forest
land (and the Partridge River where it flows through national forest land) will be affected. In
particular, the portion of the Partridge River that flows through Sections 14 and 15 of T56N,
R13W656 will be significantly affected by upstream air deposition, including deposition onto wetlands
on the NorthMet mine site that subsequently enter the river. While the FEIS opines that the
Partridge River will not be affected by air deposition because NAAQS will not be violated beyond
the ambient air boundary, the Partridge River flows within the ambient air boundary directly to the
east (i.e., downwind) of the mine site.657
As explained above, the FEIS does not provide sufficient information on the deposition of metals to
allow a hard look at the impacts to Forest Service land. However, the scant information that it
does provide indicates that one of the most heavily affected areas (defined as greater-than-100%increase over background levels) crosses over onto what will remain Forest Service land.658
The FEIS does not provide a comparable map of estimated sulfur deposition. However, it does tell
us that the potential increase in sulfate levels in wetlands from air deposition is 1.7 mg/L, after
dilution from precipitation.659 Without the missing information it is impossible to tell whether this
increase in sulfate levels will extend to Forest Service property, but we note that the nearby property
that will remain in the national forest contains extensive wetlands along Stubble Creek and the
Partridge River, both of which flow through Forest Service lands. While the FEIS treats 1.7 mg/L as
negligible, it is actually quite a substantial addition to wetland waters, as explained above.
To say it one more time, the impacts of air deposition of sulfur and metals to the Partridge River and to wetlands
are not assessed in the FEIS. The Forest Service cannot determine that the land exchange will be
consistent with the air quality provisions of the Forest Plan because it does not know what the air
quality impacts of the land exchange and mine will be.
655
See Center for Biological Diversity v. U.S. Dept. of Interior, 623 F.3d 633, 647 (9th Cir. 2010) (Without
an accurate picture of the environmental consequences of the land exchange, the BLM cannot
determine if the public interest will be well served by making the exchange, and the Secretary
cannot determine if the values and the objectives which the selected lands may serve if retained
in Federal ownership are not more than the values of the offered lands.).
656
FEIS 4-453, Figure 4.3.1-1.
657
FEIS 5-217, Fig. 5.2.3-17.
658
Compare FEIS Figure 5.2.3-17 with FEIS Figure 4.3.1-1.
659
FEIS 5-313.
153
45.0
The Land Exchange is inconsistent with Watershed provisions.
Watershed provisions in the Forest Plan include: Management activities do not reduce existing
quality of surface or groundwater or impair designated uses of surface and ground water (D-WS-4);
Wetland impacts will be avoided whenever possible. Where impacts are unavoidable, minimize and
compensate for loss when undertaking projects (G-WS-13); and Wetlands will be managed to
prevent the reduction of their water quality, fish and wildlife habitat, and aesthetic values.
Management actions will not reduce water quality within a wetland, or upstream or downstream of a
wetland, unless restoration of natural conditions is the primary goal of the activity. (G-WS-15).660
An exchange of land with the specific purpose of facilitating an open pit mine that will reduce
existing surface and groundwater quality, impair designated uses of surface and groundwater, reduce
water quality within wetlands and upstream of wetlands, and affect the hydrology of wetlands would
be inconsistent with these provisions.
Given the federal policy of preventing wetland loss and maintaining water quality across all
ownerships, the Forest Service should not be facilitating the impacts of the proposed mine,
regardless of whether impacted resources will be on federal land after the land exchange. We focus
here on impacts to lands that will remain in federal ownership, but our objection includes the
position that any Forest Service management activities that result in water quality degradation of
surface or groundwater or wetlands over any ownership is inconsistent with the Forest Plan.
The Forest Services proposed action will result in the reduction of water quality of surface water,
groundwater, and water upstream of wetlands on property that will remain within the national
forest. We specifically point to Sections 14 and 15 of T56N, R13W661 as continuing national forest
lands that will experience a reduction in water quality pursuant to the proposed action.
FEIS Figure 5.2.2-7,662 which shows groundwater flowpaths at the proposed mine site, includes a
yellow line representing the Extent of Future PolyMet Lands. That line cuts across the
groundwater flow paths between the mine features and the Partridge River. The land immediately
south of the yellow line is and will remain national forest land. Portions of the West Pit flowpath
(including the Wet Pit Outlet stream), the OSLA flowpath, and the WWTF flowpath will all cross
national forest land before they discharge to the Partridge River, also on national forest land.
Figure 5.2.2-7 indicates two Groundwater Evaluation Locations on what would become the
boundary between PolyMet land and national forest land. One is located in the West Pit Flowpath,
and one is located in the WWTF Flowpath. The FEIS does not provide sufficient information about
impacts on groundwater quality, but PolyMets Water Quality Data Package provides a few figures
that indicate that mining would reduce the water quality of groundwater on national forest land. The
figures show water quality degradation for cobalt and sulfate.663 Comparable information is not given
660
Forest Plan 2-15.

FEIS 4-453, Figure 4.3.1-1.
662
FEIS 5-9.
663
PolyMet 2015m (Water Modeling Data Package Vol. 1) 230-233.
661
154
for other constituents, but it appears from a comparison of Water Quality Data Package Large
Figure 52 with FEIS Table 4.2.2-6664 that groundwater on the national forest would also be degraded
for cadmium and zinc.
In regard to wetlands, FEIS Figure 5.2.3-1665 shows wetlands surrounding the mine site. Figure
5.2.3-3666 is also useful in that it shows wetlands over a larger area. Again, there is no indication on
these figures of what would be national forest property after the land exchange, but by comparing
them with Figure 4.3.1-1, it is clear that coniferous bogs, coniferous swamps, and riparian shrub
swamps on the national forest would lie downstream of waters that will be impacted by the mine.
Furthermore, the Partridge River, which will continue to run through Forest Service land, will itself
be impacted. While the FEIS adopts PolyMets prediction that there will be no violations of water
quality standards as a result of those impacts, this is not the standard used in the Forest Plan, which
instead provides for no reduction in water quality.
Although the FEIS is not clear about this, modeling is based on the effluent from the Waste Water
Treatment Facility (WWTF) entering the Partridge River somewhere between SW-004 and SW004a,667 both of which are located on what will remain national forest property. Table 5.2.2-31
indicates that water quality at SW-004a (below the WWTF discharge point) will be degraded for
cobalt, copper, lead, and nickel. There are wetlands on national forest property that will lie
downstream of the discharge. Conducting a land exchange that allows for this degradation is
inconsistent with Forest Plan D-WS-4 and G-WS-15.
Furthermore, treatment of water will need to continue for hundreds of years.668 If that treatment
ends prematurely, as it undoubtedly will given the timeframe, highly polluted water would flow
directly onto national forest property. This water would overflow out of the West Pit, where at Year
200 some of the predicted levels of constituents are:
For copper, 120 ug/L at the P10 level and 580 ug/L at the P90 level,669 compared to an
approximate water quality standard of 9.3 ug/L;670
For cobalt, 15 ug/L at the P50 level and 45 ug/L at the P90 level,671 compared to a water
quality standard of 5.0 ug/L;672
664
FEIS 4-62.
FEIS 5-267.
666
FEIS 5-273.
667
See FEIS 5-39 (Fig. 5.2.2-7).
668
This is true whether the treatment is active or passive. No water treatment is so passive that
it does not require maintenance; the results of a discontinuation of such maintenance would
eventually result in the same quality of water being released to wetlands and the Partridge River.
669
PolyMet 2015m, Att. G, Fig. G-11-13.2 (electronic page 1189). Numbers are approximate, as they
are taken from a graph.
670
SDEIS 5-17, Table 5.2.2-4. The standard is hardness-based, and as applied may be higher or
lower. The FEIS does not provide usable information for this analysis. See FEIS 5-150.
671
665
155
For nickel, 200 ug/L at the P50 level and 400 ug/L at the P90 level,673 compared to an
approximate water quality standard of 52 ug/L.674
This is exactly the type of situation that has resulted in so many contaminated mine sites on national
forests across the country.
Furthermore, there are many reasons why the prediction that there will be no violations of water
quality standards is not believable, even during the time that water is treated. These reasons are
explained above in the discussion of NEPA issues. No assessment of mercury in the groundwater
flowpaths has been done. Assumptions are made about mercury levels in the influent to the WWTF
and/or the WWTFs ability to remove mercury to very low levels that are unsupported. The
flowpaths shown on Figure 5.2.2-7 and used in the GoldSim model are not based on actual
geographical and hydrological information from the site. No assessment of water quality impacts
above SW-004 has been done. And perhaps most importantly, the FEIS assumes that all mine
operations and systems will work perfectly for hundreds of years, with no basis in past experience
and despite evidence to the contrary. According to the DROD, the Forest Service is basing its belief
that environmental standards will be met on the FEIS. The many deficiencies in the FEIS make this
belief unreasonable.
Finally, G-WS-13 states, Wetland impacts will be avoided whenever possible. Where impacts are
unavoidable, minimize and compensate for loss when undertaking projects. FEIS Figure 5.2.3-6675
shows the likelihood of indirect hydrological effects on wetlands surrounding the proposed mines
according to one of the analog methods used to predict indirect impacts. Once again the map does
not provide this information, but quite a lot of the wetland acreage shown as having a high
likelihood of impacts is and will remain national forest property. We have found no mention of
these wetlands in the discussion of impacts to the federal estate, and as far as we can tell from the
FEIS and the DROD, the loss of this wetland acreage will not be compensated for prior to the land
exchange or construction of the mine, nor has it been accounted for in the land exchange. 676
Furthermore, we have found nothing in the record about minimizing impacts to these wetlands. For
example, the water from mine dewatering will be used as process water at the plant, rather than
treated and discharged back to the Partridge River system to minimize impacts on hydrology,
particularly in wetlands. The failure to minimize impacts and to compensate for losses violates GWS-13.
672
FEIS 5-151, Table 5.2.2-31.

674
SDEIS 5-17, Table 5.2.2-4. The standard is hardness-based, and as applied may be higher or
lower. The FEIS does not provide usable information for this analysis. See FEIS 5-150.
675
FEIS 5-285.
676
Furthermore, apparently the company will be allowed to destroy 20% of a wetland area before the
impact is deemed significant enough to require compensation, see Section 17.2.2 above which could
well lead to a loss of wetlands both to the State of Minnesota and to the federal estate, with no
compensation to either.
673
156
Thus far, there is no indication that PolyMet will be required to provide compensation for indirect
wetland losses before those losses occur. Instead, the company plans to monitor wetlands, and
presumably to provide compensation as impacts are discovered. Perhaps the Forest Service believes
that this is sufficient to protect its interests. But FEIS Figure 5.2.3-31677 indicates that despite the
high likelihood that wetlands on Forest Service property will be affected, no monitoring wells are
planned for this entire area, and no baseline monitoring has been done.
It is difficult to understand how the Forest Service could believe that an action that is undertaken
specifically to allow an activity that would have all of these impacts on water resources is consistent
with the Forest Plan. The FEIS, upon which the DROD relies, hides this information more than it
reveals it, and we have to wonder whether the Forest Service even understands that the mine is
judged (under one assessment method) to have a high likelihood of impacts on national forest
wetlands, for which no compensation or mitigation is planned.
46.0
The Land Exchange is inconsistent with Vegetation provisions.
The Forest Plan includes many desired conditions and objectives for vegetation that militate against
disposing of the Federal lands. While we understand that these conditions and objectives apply to
the forest as a whole, and that any given part of the forest may not be managed according to a
particular Forest Plan provision, together the provisions indicate the direction that the Forest
Service plans to go. The Federal lands contain resources that the Forest Plan indicates should be
increased rather than decreased, and the FEIS and DROD do not include any plan to make up for
the discrepancy. The land exchange is thus inconsistent with the Forest Plan in regards to
vegetation.
Vegetation provisions with which the land exchange is inconsistent are too numerous to quote here,
but include the following: D-VG-2, D-VG-6, D-VG-7, O-VG-1, O-VG-2, O-VG-3, O-VG-6, OVG-9, O-VG-13, O-VG-14, O-VG-16, O-VG-19, O-VG-22, G-VG-5. In particular we note O-VG2, Increase acres of red, white, and jack pine, spruce/fir, and northern hardwood vegetation
communities. Decrease acres of aspen vegetation communities; O-VG-16: Increase acres of oldgrowth lowland black spruce and tamarack forest communities; and O-VG-19, Maintain a
representative array of large patches (>300 acres) of mature or older lowland forest.678
Taken together, these objectives give a good indication of the direction in which the Forest Service
is trying to move in regards to forest types; the proposed land exchange moves in the opposite
direction. For example, upland conifer forest would decrease by 919.5 acres, which the Forest
Service admits is contrary to the Forest Plan.679 Aspen communities would increase.680 The exchange
677
FEIS 5-285.
Forest Plan 2-20 to -27.
679
FEIS 5-704.
680
FEIS 5-702.
678
157
would result in a net loss of 2,029 acres of mature forest (most of which is lowland), most of it in a
patch much larger than 300 acres, and possibly in a patch of greater than 1,000 acres.681
47.0 The Land Exchange is inconsistent with provisions to protect federally listed species.
The FEIS and Biological Assessment (BA) for the proposed mine and land exchange fails to
demonstrate that the proposed action would comply with Forest Plan objectives, standards, and
guidelines for threatened and endangered species. The Forest Plan provides that the Forest Service
will [m]aintain, protect, or improve habitat for all threatened and endangered species.682 The FEIS
acknowledges, however, that the NorthMet project would destroy habitat for lynx, wolves, and the
northern long-eared bat. The project would destroy more than two square miles (1,454 acres) of lynx
and gray wolf habitat.683 The project would also disturb habitat for the northern long-eared bat.684
47.1
Canada Lynx
For lynx, in addition to the provisions for all threatened and endangered species, the FEIS fails to
demonstrate consistency with the following objectives, standards and guidelines:
O-WL-8:
Promote the conservation and recovery of Canada lynx and its habitat.
Conservation, as defined under the Endangered Species Act, means to use all methods and
procedures which are necessary to bring any endangered species or threatened species to the point
at which the measures provided by the ESA are no longer necessary.685 Recovery is defined as the
process by which the decline of an endangered or threatened species is stopped or reversed, or
threats to its survival neutralized so that its long-term survival in the wild can be ensured, and it can
be removed from the list of threatened and endangered species.686 The agencies analysis of
impacts to lynx and its critical habitat in the FEIS fails to consider the impacts of the project on lynx
recovery. In fact, the Fish and Wildlife Services Canada lynx Recovery Outline,687 is not
mentioned in the FEIS or BA, and was apparently not considered as it is not included in the list of
references. The lynx impacted by the NorthMet project are located in a core area under the
recovery outline, where lynx conservation efforts are supposed to be focused.688
681
See FEIS 4-495 (Much of One Hundred Mile Swamp consists of mature (80-plus years) black
spruce and northern white cedar.)
682
Forest Plan 2-29.
683
FEIS, 5-434, 5-437.
684
Id. 5-438.
685
16 U.S.C. 1532(3).
686
U.S. FWS, Endangered Species Glossary (2015) accessed at
http://www.fws.gov/endangered/about/glossary.html on Jan. 2, 2016 (attached as exhibit 47a).
687
U.S. FWS, Recovery Outline: Contiguous United States Distinct Population Segment of Canada
Lynx (2005) (attached as exhibit 47b).
688
Id. at 4.
158
O-WL-11:
Maintain and, where necessary and feasible, restore sufficient habitat
connectivity to reduce mortality related to roads and to allow lynx to disperse within and
between LAUs and between LAUs and Boundary Waters Canoe Area Refugium on NFS
land; and
O-WL-12:
[M]aintain or restore, where feasible, linkage areas that provide habitat
connectivity sufficient to allow lynx to disperse between disjunct blocks of lynx habitat at
larger landscape scales (for example, among National Forests in the Great Lakes region).689
Rather than maintaining and restoring habitat connectivity between LAU 12 and other LAUs, the
Boundary Waters, and the larger landscape, the proposed land exchange and mine would adversely
impact two of the 13 remaining wildlife corridors in the region.690 The corridor at the proposed site
has been identified as important and contains high quality habitat.691 Operations at the Mine Site
would indirectly affect the corridor by reducing its size and acting as a source of noise and activity
near the large habitat block southeast of the corridor. Id. Despite acknowledging impacts to these
remaining corridors, however, the FEIS does not address compliance with O-WL-11 and O-WL-12
of the Forest Plan.
O-WL-14:
[R]educe, to the extent possible, the potential for lynx mortality related to
highways and other roads within the proclamation boundary of the National Forest.692
The mine and the haul road between the NorthMet mine site and plant site would remain within the
proclamation boundary of the Superior National Forest. The FEIS discloses that the proposed
action would increase vehicle traffic by an average of 2,066 miles per day within the mine site, and
another 1,735 miles per day between the mine site and plant site.693 Rather than reducing the
potential for lynx mortality related to roads, this significant increase in traffic increases the chance
of incidental lynx mortality.694
S-WL-1:
Management activities on NFS land shall not change more than 15% of lynx
habitat on NFS land within an LAU to an unsuitable condition within a 10-year period.695
The proposed land exchange and mine would destroy 1,454 acres of lynx habitat within LAU 12.696
The FEIS fails to consider or determine whether additional projects and activities within LAU 12
may, along with the NorthMet project, result in a cumulative change of more than 15% of LAU 12
to an unsuitable condition within the next ten years.
689
Forest Plan 2-29.

FEIS 6-77.
691
Id.
692
Forest Plan 2-29.
693
FEIS 5-436.
694
FEIS 5-437.
695
Forest Plan 2-30.
696
FEIS 5-437.
690
159
47.2
Gray Wolf
For the gray wolf, the FEIS fails to demonstrate compliance with the following standard:
S-WL-4:
Management activities for the gray wolf will be governed by Recovery Plan
for Eastern Timber Wolf (1992).697
The FEIS does not consider the 1992 Recovery Plan in its analysis, and the Recovery Plan is not
included in the list of references. The Recovery Plan discusses critical factors for the wolfs longterm survival, including among other things large tracts of wild lands with low human densities and
minimal accessibility by humans, ecologically sound management, and the availability of adequate
wild prey.698 The lands that will be disposed of meet all of these factor, and in fact wolves are known
to use the site.699
The Recovery Plan further discusses the effects of development on wolves, including increased
human presence; unnatural structures, sounds, and smells; artificial corridors; diseases and parasites;
and reduced prey species abundance and diversity.700 The Plan states that the desired future state is
to manage road densities so as not to exceed 1 mile per square mile in the parts of Minnesota where
road density is limiting wolf recovery.701 And the Plan discusses the wolfs dependence on a
continual supply of moose,702 which is now in rapid decline in northern Minnesota. All of these
negative factors will increase due to the Land Exchange. Because it does not mentioning or consider
the Recovery Plan, the Forest Service has not demonstrated that the proposed land exchange and
mine would be consistent with S-WL-4.
47.3
Northern Long-Eared Bat
The Superior Forest Plan has not been amended or revised to add additional protections and
requirements for the northern long-eared bat subsequent to its listing as a threatened species under
the ESA. The general provisions for threatened and endangered species, however, still apply. Thus
the Forest Service is to maintain, protect, or improve habitat for the northern long-eared bat, and
reduce or eliminate adverse effects on the bat.703 However, the FEIS admits that the proposed
mine and land exchange would harm habitat for the northern long-eared bat.704 The FEIS does not
consider or explain how the proposed project would be consistent with the Forest Plan provisions
697
Forest Plan 2-31.

U.S. FWS, Recovery Plan for the Eastern Timber Wolf (1992) (attached as exhibit 47c).
699
FEIS 4-246.
700
Ex. 47c at 17.
701
Id.
702
Id. at 21.
703
Forest Plan 2-29 (O-WL-4, O-WL-6).
704
FEIS 5-438 (Forest clearing activities at the Mine Site are likely to affect northern long-eared bat
individuals as there would be a loss of potential summer roost habitat and foraging areas, and
[r]esuming operations at the Plant Site would likely disrupt the bats use of them for roosting).
698
160
designed to protect and conserve threatened and endangered species, including the northern longeared bat.
48.0 The Land Exchange is inconsistent with provisions to protect Regional Forester
Sensitive Species.
The Forest Plan includes provisions designed to protect and restore populations of Regional
Forester Sensitive Species (RFSS). Provisions that apply to all RFSS include G-WL-11, Avoid or
minimize negative impacts to known occurrences of sensitive species; G-WL-12, Minimize
negative impacts to known sensitive species from management activities that may disturb pairs in
their breeding habitat during critical breeding season (varies by species); and S-WL-5, If negative
impacts to sensitive species cannot be avoided, management activities must not result in a loss of
species viability forest-wide or create significant trends toward federal listing.705
The FEIS and BE do not provide enough information to support a determination that the loss of
RFSS raptor nesting areas and plant species to the federal estate due to the land exchange will not
result in a loss of species viability forest-wide. These and other relevant provisions are addressed
according to species or types of species below.
48.1
Northern Goshawks and Great Gray Owls
According to the Biological Evaluation (BE), breeding pairs of both northern goshawks and great
gray owls have been observed nesting at the PolyMet mine site. Both are Regional Forester Sensitive
Species; northern goshawks are also a Management Indicator Species. Goshawks nested at the site in
2000, and were observed using the site in 2005.706 In addition,
In April 2009, a goshawk nest with a pair of goshawks at the nest was found near the
boundary of the Mine Site (Wetlegs Creek Territory; AECOM 2009, Ryan 2013b). . . . . In
2010, a barred owl used the nest at this location. In 2011, the nest was again used by
northern goshawks. The nest was not occupied by goshawks during 2012, but in 2013 was
again used by northern goshawks, although the nest attempt failed. A second nest was also
found near the boundary of the Mine Site in 2009, but the nest was unoccupied and may
have been an alternate goshawk nest or nest of another raptor or common raven.707
Regarding great gray owls,
During 2009 surveys . . . a great gray owl was observed hunting along Dunka Road south of
the Mine Site. Based on Forest Service observations, a great gray owl pair was seen using a
nest site on the Mine Site in 2006, and possibly in 2010. The nesting effort(s) were
unsuccessful. This was the same nest site used by northern goshawks in 2000 (ENSR 2000;
705

BE 5-58 to -59.
707
BE 5-59.
706
161
Ryan 2013b). In 2011, a great gray owl was seen using a nest site on the federal lands
surrounding the Mine Site and near a nest used by northern goshawks (Wetlegs Creek
Territory).708
According to the BE, neither species has been observed nesting on the Non-federal Lands.709
We discuss the lack of information in the FEIS and BE regarding northern goshawks and great gray
owls above under the NEPA issue of cumulative impacts to wildlife.710 The FEIS and BE do
consider how rare these raptors are within the Superior National Forest; they simply assume that the
loss of one nesting territory would not have an impact on the viability of the species within the
forest. But once it becomes clear how few such territories there are; how few pairs are seen nesting
in an average year; and how few young survive, a different picture emerges. As explained above, we
are unable to go farther into this issue due to confidentiality constraints. However, we urge you to
obtain a copy of the NHIS data on northern goshawks and great grey owls. For northern goshawks,
consider the number of pairs observed nesting and producing young in an average year, and then
assess whether the loss of a nesting territory is significant.
The NHIS database reveals that there have been only eleven reports of great gray owls sighted on
the Superior National Forest over a ten year period.711 Great gray owls were seen at the mine site in
2006, 2009, 2010, and 2011. Judging by the NHIS Database Index Report, the repeated use of the
mine site by great gray owls over the years is virtually unmatched anywhere else in the forest. Also
based on the Index Report, it appears that there are no more (and may be less) than seven great gray
owl nesting areas across the entire forest.
Forest Plan provisions specific to great gray owls include O-WL-21, In known or good potential
breeding habitat, maintain or restore high quality habitat conditions: Mature (>50 years old), dense,
upland forest nesting habitat within to 1 miles of areas with a sufficient network of lowland
conifer forest, bog, and non-forest foraging habitat, and G-WL-14, Allow, to the extent practical,
only activities that protect, maintain, or enhance site conditions within 660 feet of a known nest
site.712 The transfer of a known nest site out of federal ownership to allow activities that will
eliminate the use of that site by great gray owls would be inconsistent with these provisions and with
G-WL-11 and G-WL-12, and may also be inconsistent with S-WL-5.
Regarding northern goshawks, the Forest Plan includes:
Provide habitat to provide for population goal minimum: 20-30 breeding pairs; (O-WL31);
708
BE 5-63.
BE 5-59 and 5-65.
710
Section 22.0.
711
selected records within 1 mile radius of: Superior National Forest, 22 (Dec. 2015) (attached as
exhibit 22n).
712
Forest Plan 2-32.
709
162
At northern goshawk nest sites with an existing nest structure, prohibit or minimize, to the
extent practical, activities that may disturb nesting pairs in an area of 50 acres minimum (860
ft. radius) during critical nesting season (March 1 August 30).
At northern goshawk nest sites in an area of 50 acres minimum (860 ft. radius), to the extent
practical, allow only those activities that protect, maintain, or enhance high quality habitat
conditions: 100% mature forest (>50 yrs old) with continuous forest canopy (>90% canopy
closure) and large trees with large branches capable of supporting nests (S-WL-10); and
Within northern goshawk post-fledging areas, minimize activities, to the extent practical, that
may disturb nesting pairs during critical nesting season (March 1 August 30) and, to the
extent practical, within a 500 acre area encompassing all known nest areas within the
territory.
Maintain suitable habitat conditions on a minimum of 60% of the upland forested acres in
post-fledging areas. Suitable habitat: jack pine and spruce/fir forest types >25 years and all
other forest types >50 years with semi-closed to closed canopy (>70%). Aspen and birch
forest types 25-50 years may be considered suitable if field review verifies that foraging
habitat trees average 50 feet tall and canopy closure is 50-70% or greater (G-WL-22).713
Once again, transferring a known nest and post-fledging area out of federal ownership to allow
activities that will eliminate the use of the area by northern goshawks would be inconsistent with
these provisions and with G-WL-11 and G-WL-12, and may also be inconsistent with S-WL-5.
Before making judgments as to the wisdom of this land exchange or its consistency with the Forest
Plan, the Forest Service needs to fully assess the NHIS data to understand how many breeding pairs
of northern goshawks are known to be present on the national forest in an average year. The Forest
Plan states a goal of 20 to 30 breeding pairs. If the average number of breeding pairs is significantly
below 20, disposing of a nesting area is not consistent with that goal.
Furthermore, this loss of a northern goshawk nesting area cannot be compensated for in the
proposed land exchange regardless of whether goshawks have been observed on any of the
nonfederal lands, for the simple reason that none of the nonfederal tracts will add a northern
goshawk nesting territory. At best they may add federal lands to an existing nesting territory, but
they will not add a nesting territory to the national forest.
The FEIS and BE focus on acres of habitat in justifying the land exchange, but the Forest Plan
evinces a recognition that providing additional habitat cannot take the place of protecting and
maintaining habitat of existing nest and fledging sites. There is much that is not known about the
nesting choices of northern goshawks and great gray owls; the best evidence that the habitat they
need exists and that they will use it is evidence that they do use it. According to the Glacier Project
713

163
BE, There are approximately 36 great gray owl nesting platforms on the SNF since 2007. Platforms
have been monitored every year with no detections as of yet.714 Build it and they will come does
not seem to be a strategy that is working for RFSS raptors on the Superior National Forest. Simply
having what the Forest Service believes to be adequate acreage for these species does not appear to
be sufficient either to meet the northern goshawk goal, or to ensure viability of the species within
the national forest.
48.2
RFSS Plant and Lichen Species
Forest Plan provisions to protect and restore populations of RFSS plant and lichen species include
G-WL-11, Avoid or minimize negative impacts to known occurrences of sensitive species; and SWL-5, If negative impacts to sensitive species cannot be avoided, management activities must not
result in a loss of species viability forest-wide or create significant trends toward federal listing.715
Clearly, the land exchange does not avoid or minimize negative impacts to known occurrences of
plant and lichen species. Furthermore, depending on the number of populations and individual
plants of these species in other locations on the national forest, and their security from threats
(including climate change), the land exchange may result in a loss of species viability forest-wide.
As explained above,716 the FEIS provides no assessment of the loss of RFSS plant species to the
federal estate. This is a significant oversight, as for some of these plants there are only a few
populations in the entire forest. For example, the NHIS Database Record Index indicates that there
are 9 records of floating marsh marigolds; 16 records of Michigan moonwort; 16 records of St.
Lawrence (or ternate) grapefern; 20 records of pale moonwort; and 25 records of bogrush.717
It is unclear from the BE and the FEIS how many populations of each of these species will be lost
to the federal estate due to the land exchange. For example, the BE states that 3 populations of
floating marsh marigolds will be lost;718 nine locations of Michigan moonwort;719 5 populations
of pale moonwort;720 7 populations of St. Lawrence grapefern;721 16 populations of least
moonwort;722 and possibly 1 population of bogrush.723
Superior National Forest, Fiscal Year 2009 Monitoring and Evaluation Report Chapter III,
Section 9b. Regional Forester Terrestrial Sensitive Species 9b.15 (July 2011) (attached as exhibit
22h).
715
716
Section 22.1.
717
Ex. 22m.
718
BE 5-2.
719
BE 5-14.
720
BE 5-15.
721
Id.
722
Id.
723
FEIS 5-421. It is unclear from the reference whether the bogrush is on the federal lands. We were
unable to find information on this species in the BE.
714
164
We doubt that the BE is using the term population accurately. In comparison, FEIS Table 5.2.43724 lists the Total Populations in the Vicinity of the Mine Site for each of these plants except
Michigan moonwort. The population for all plants other than least moonwort is given as 1; the
number of populations of least moonwort is 3. As for Michigan moonwort, one population is
known to occur on the Mine Site.725 However, it is unclear whether these numbers include all
populations on the Federal lands. In the Vicinity of the Mine Site is not defined, and the
corresponding section regarding the land exchange provides no additional information. In short, the
FEIS does not provide adequate information on the number of populations of these plants that will
be lost to the federal estate.
On November 23, 2015, Jane Reyer, a contractor for MCEA and Friends, called Jack Greenlee, the
Superior National Forest Plant Ecologist who is listed as a responsible party on the BE to ask about
the apparent error in regards to floating marsh marigold. Ms. Reyer was told that the BE had been
prepared by Barr Engineering, and that Mr. Greenlee did not know what was meant by the word
population in that context; Mr. Greenlee suggested that she call the author of the BE at Barr
Engineering for clarification.
The Forest Service is responsible for the determination that (for instance), The Proposed Action . .
. may impact individuals but [is] not likely to cause a trend to federal listing or loss of viability for
floating marsh marigold.726 We question how the Forest Service came to this determination when
the information it had at hand (and was putting out to the public) was that 3 of 9 known populations
of floating marsh marigold on the national forest would be given away in the land exchange. Once
again, it is not that we believe this information is accurate. Rather, the evidence indicates that no one
within the Forest Service ever looked at the relevant information to determine whether, in light of
the other populations of these species on the national forest, disposing of some of these populations
was consistent with the Forest Plan.
Even if FEIS Table 5.2.4-3 includes all populations on the Federal lands, it indicates that for one
species (least moonwort) the Forest Service will be disposing of almost 20% of its known
populations in this land exchange. The Forest Service cannot simply assume that this action will
have no impact on the viability of the species on the Superior National Forest.
While we are unable to disclose specific information, we also point out that there is a large variation
in the sizes of populations of these plants. The viability of a plant on the national forest may also be
affected if the population that is being disposed of constitutes a large percentage of the total plants
on the forest. Populations in other locations may not be large enough to ensure that those
populations will continue into the future.
Finally, as discussed above, without information on the security of other populations of these plants,
it is impossible to know what the loss of populations at the NorthMet site means for viability. There
724
FEIS 5-417.
FEIS 5-422.
726
BE 5-9.
725
165
is no indication that the Forest Service has considered this; in fact, quite the opposite. As such, a
determination that the land exchange would not result in the loss of viability of any of these species
within the national forest is not possible.
In regard to lichens, the Forest Plan contains a guideline that covers six particularly rare and
sensitive species, five of which are found in habitats that are present on the mine site. The five are
Cetraria aurescens (no common name), Sticta fulginosa (peppered moon lichen), Menegazzia terebrata
(honeycombed lichen), Ramalina thrausta (cartilage or angels hair lichen), and Usnea longissimi (beard
lichen).727
In addition to G-WL-11 and S-WL-5, G-WL-21 states, Do not permit management activities
within stands that have known locations of sensitive lichens unless activity maintains, protects or
enhances habitat conditions for lichens (old growth black ash or lowland conifer with interior forest
conditions).728 In this case there are no known locations of sensitive lichens on the Federal lands
because no one has ever looked for them. As explained above, given the presence of rare and
appropriate habitat, this failure to survey to determine whether lichens are present violates NEPA.
And given the premium on preserving these species, it is inconsistent with the Forest Plan to
dispose of land containing rare and appropriate habitat without such a survey.
49.0 Land Adjustment and Minerals provisions do not provide for land exchanges to
facilitate mining.
The DROD relies on the Land Adjustment and Mineral provisions of the Forest Plan to support the
Forest Service position that the land exchange would be consistent with the plan.729 This reliance is
misplaced.
First, the Forest Plan is completely silent on the prospect of exchanging land to allow for open pit
mining. The Forest Plan is the legally-required process by which decisions are made as to the
wisdom and potential for this type of action, forest-wide. If the Forest Service is going to engage in
land exchanges to facilitate mining, the Forest Plan should delineate areas where such a land
exchange would be considered, forest resources and conditions that if present, would militate against
such an exchange, and conditions that would be utilized to protect public and national forest
resources. This National Forest Management Act was enacted precisely to prevent what is happening
here: piecemeal decisions without any planning prior to their proposal.
The reality is that this management action is not consistent with the Forest Plan because the forest
planning process did not include or address it. The Forest Service is now trying to shoehorn the land
exchange into the provisions of the Forest Plan because in regards to land exchanges for mining, the
Forest Service has done no planning.
727
BE 5-21 to -25.
Forest Plan 2-34.
729
DROD 11-13.
728
166
The Forest Service is trying hard to make that shoe fit, but its justifications are just that:
justifications. The Forest Service is neither letting go of the Federal lands nor acquiring the
Nonfederal lands for any of the reasons listed in the Land Adjustment provisions. These provisions
were clearly intended to guide the Forest Service as appropriate reasons for engaging in a land
exchange, not as a checklist by which any land exchange would be appropriate as long as the lands
meet one of the criteria on the checklist.
The fact that the Forest Plan does not provide for land exchanges to allow for mining development
is clear from the Minerals provisions. According to those provisions, The protection of federal
surface will be accomplished through negotiating with the mineral owner or operator and
implementing applicable State and federal Laws, S-MN-12; and Where a federal permit is required,
mitigation measures and management requirements will be established to minimize and mitigate
adverse environmental effects, S-MN-13.730 Land adjustment is notably missing. In fact, S-MN-12
indicates that the Forest Service position will be to protect the federal surface, rather than trading it
away for its destruction.
The Forest Service cites D-MN-2 as justification for the land exchange: Ensure that exploring,
developing, and producing mineral resources are conducted in an environmentally sound manner so
that they may contribute to economic growth and national defense.731 We note that the Forest
Service is going to great lengths not to have this mine on national forest property precisely because
of the environmental effects. We question how exactly the land exchange would ensure that
producing mineral resources would be conducted in an environmentally sound manner.
The attempt to justify the land exchange pursuant to the Land Adjustment provisions also misses
the mark. To begin, the DROD takes many of the Land Adjustment provisions out of context. For
example, it uses Desired Condition D-LA-1732 for the proposition that any improvement in any of its
listed factors means that the land exchange falls within the intentions of the Desired Condition. But
this is not what D-LA-1 says. Instead, it envisions that the amount and spatial arrangement of land
are sufficient to meet the listed factors. There is little indication that the current spatial
arrangement in the area of the proposed land exchange is insufficient in regard to these factors, and
to the extent that it is, the land exchange would make it worse by isolating smaller pieces of national
forest land and making more forest service land subject to the impacts of mining. D-LA-1 does not
justify a land exchange made for unplanned reasons even if one or two of the listed factors are
marginally improved.
730
Forest Plan 2-24.

Forest Plan 2-9.
732
Forest Plan 2-51 (The amount and spatial arrangement of National Forest System land within
the proclamation boundary of the Forest are sufficient to protect resource values and interests,
improve management effectiveness, eliminate conflicts, and reduce the costs of administering
landlines and managing resources.)
731
167
In another example, because the Forest Service could add 307 acres to a proposed candidate
Research Natural Area in the Hay Lake tract, the DROD finds that it meets G-LA-2, priority 1(c),733
which applies to land acquisitions. But priority 1(c) refers to land needed to protect and manage
such areas; it does not establish a priority to buy or otherwise acquire lands to expand those areas.
Similarly, according to the DROD, the Federal lands meet G-LA-3(a),734 which applies to land
disposals, because the tract is adjacent to intensively developed private land including ferrous
mining areas. However, G-LA-3 states that such land is potentially available for conveyance only
if is also chiefly valuable for non-National Forest System purposes. In light of the extensive,
valuable natural resources on this property, this land cannot be said to be chiefly valuable for nonNational Forest System purposes.
Furthermore, when read as a whole, many of the provisions cited by the DROD weigh more heavily
against the land exchange than for it. For example, the current spatial arrangement protects a large,
contiguous area of extremely valuable public resources, including resources that will be lost forever
that cannot be replaced735 under the land exchange. While the Forest Service points to a decrease
in isolated tracts of forest, one has to wonder if it has looked at a map. The land exchange will leave
far more isolated pieces of national forest property than the Federal Land is now.736 Portions of
T59N, R12W, Sections 6 and 7 will remain as an almost completely isolated piece of the forest.
Similarly, T59N, R13W, S19 will lose its connection to other national forest property to the north,
and will become almost wholly isolated. Looking at the Superior National Forest map, it is clear that
the real situation is that the Federal Land is part of one of the largest contiguous areas of national
forest land in this part of the forest, broken only by a private inholding of less than two square
miles. The Forest Service can choose to call this mostly isolated from other National Forest System
land,737 but if that is the case there is an awful lot of land in the Superior National Forest up for
grabs.
The DROD goes through the priorities for land acquisition expressed in G-LA-2, and finds several
under priority 2 that apply to the Nonfederal lands.738 But the reality is that the Federal lands meet
the priority 1 criteria. This is land needed for habitat for federally listed endangered, threatened,
proposed, or candidate species or for Regional Forester Sensitive Species, G-LA-2 Priority 1(a). It
is also land needed to protect significant historical and cultural resources, when these resources are
threatened or when management may be enhanced by public ownership, Priority 1(b).739 If the
733
Forest Plan 2-52 (Land needed to protect and manage administrative or Congressionally
designated, unique, proposed, or recommended areas.)
734
Id. (Land inside or adjacent to communities or intensively developed private land, and chiefly
valuable for non-National Forest System purposes.)
735
E.g., conifer bogs and other ecosystems that are imperiled due to climate change.
736
See FEIS 4-453, Figure 4.3.1-1.
737
DROD 13.
738
As explained above, the attempt to make priority 1c fit the Hay Lake Lands misreads the
provision.
739
Forest Plan 2-51.
168
Forest Service did not already own this land, it would be a perfect candidate for acquisition! It is not
consistent with the Forest Plan to trade this land for land that does not meet priority 1 criteria.
Finally, the justification that the federal tract to be conveyed is adjacent to intensively developed
private land including ferrous mining areas is astounding. This project will result in another tract of
federal land equally adjacent to intensively developed private land including copper mining areas.
How is this an improvement?
The land exchange will result in the destruction of a large area of High Biodiversity Significance that
supports rare and endangered species and ecosystems and contains historical and cultural resources
of importance to local Indian tribes. Very little seems to be known about the land to be acquired in
exchange; certainly not enough to balance what is being lost. If this is really what was envisioned in
the forest planning process, we object not only to the land exchange, but to the Forest Plan.
50.0
The Forest Plan must be amended before the land exchange can be considered.
The proposed NorthMet mine and land exchange along with the Twin Metals proposals and
activities and the widespread mineral exploration on the Superior National Forest demonstrate that
the 2004 Forest Plan and FEIS fail to address the significant impacts posed by sulfide copper minerelated activities on the Superior National Forest. The 2004 FEIS740 wholly fails to address the
reasonably foreseeable environmental consequences of sulfide copper mining on forest resources,
including wildlife, watersheds, wetlands, and water quality, and thereby fails to take the required
hard look at the impacts of sulfide copper mining in violation of NEPA.741 The Forest Service
must prepare a Supplemental EIS and amend the Forest Plan before it can go forward with
management actions such as this land exchange, which has never been considered in a planning
process.
By failing to adequately address the impacts of sulfide copper mining in the 2004 FEIS or Forest
Plan, the Forest Service has also violated NFMA. Without addressing the threats and impacts of
sulfide copper mining at the forest-wide scale, the Forest Service has failed to provide for multiple
use, sustained yield, and adequate protection and consideration of forest resources, including
watersheds, wildlife, and fish; and has failed to provide for the diversity of plant and animal
communities on the forest.742 Similarly, as the circumstances of the proposed land exchange make
clear, the 2004 Forest Plan fails to include sufficient standards and guidelines to insure the ecological
integrity of the terrestrial and aquatic ecosystems and watersheds in the plan area in relationship to
mineral exploration and development.743 The Plan also fails to include sufficient standards and
guidelines to maintain air quality, water quality, water resources, riparian areas, and cultural
resources.744
740
FEIS Reference U.S. Forest Service 2004c.

42 U.S.C. 4332(2)(C); 40 C.F.R. 1502.16, 1502.24.
742
16 U.S.C. 1604(e), 1604(g)(3)(A,B); 36 C.F.R. 219.9.
743
36 C.F.R. 219.8(a)(1).
744
Id. 219.8(a).
741
169
D. The Weeks Act

The Forest Service regulations governing land exchanges prohibit the agency from accepting lands
in which there are reserved or outstanding interests that would interfere with the use and
management of the land by the United States or would otherwise be inconsistent with the authority
under which, or the purpose for which, the lands are to be acquired.745 This regulation is based in
part on the Weeks Act,746 which provides that a land acquisitions shall in no case be defeated due
to reservations, if they will in no manner interfere with the use of the lands so encumbered, for the
purposes of the Act. Removing the double negative indicates that if mineral reservations do
interfere with the use of the lands for the purposes of the Weeks Act (watershed protection and
timber production), the land acquisition is not permitted.
51.0
The quality of title of the nonfederal properties is too poor for acquisition pursuant to
the Weeks Act.
Most of the non-federal lands that would be acquired have reserved or outstanding mineral interests
that would not be transferred to the United States. PolyMet would convey only the surface of the
Hay Lake Lands (Tract 1), which includes 4,926.3 acres.747 The United States similarly would receive
only the surface rights to the 391.9 acres comprising the Lake County Lands (Tract 2), and the
1575.8 acres comprising the Wolf Lands (Tract 3).748
Our primary objection is to the inclusion of Wolf Lands 2, 3, and 4. According to the FEIS,
outstanding mineral rights include the right to sink, cave, disturb, and remove the surface. The title
commitment review indicated that this represents a poor condition of title that may be immaterial
because the mineral development potential is low.749
We question the basis for the determination that the mineral development potential is low.
According to the cited document, The mineral potential for the bedrock at the site appears to be
low.750 The two factors stated in support of this judgment are no exploration drilling or reporting
has been conducted at the Wolf Lands parcels or the immediate region around the parcels; and
The types of rock of the Duluth Complex that are present in the area of the Wolf Lands sites are
not considered to have economic mineralization within the complexes because these rocks are not at
the basal contact of the complex and are separate intrusions or have different mineralogy within the
complex from areas where sulfide mineralization have been found.751
745
36 C.F.R. 254.15(c)(ii).
16 U.S.C. 518.
747
FEIS 4-450, 4-455.
748
FEIS at 4-459, 4-460, 4-465.
749
FEIS 4-465.
750
Barr 2011c at 6 (emphasis added).
751
Id.
746
170
These lands are located within an area of active mineral leases from the State of Minnesota, held by
Encampment Minerals.752 A close comparison of Figure 3.3-1753 with the MDNR lease map indicates
that Wolf Lands 2, 3, and 4 are each within a mile of active state mineral leases. It is clear from the
size of the proposed NorthMet mine itself as well as other existing and potential mines in the area
that any land within a mile of active mineral exploration does not have a low mineral development
potential.
It is well-known in Northeastern Minnesota that the Isabella area has been targeted by mining
companies. A sample 2012 news article regarding the leases states, The issue was especially battled
by several landowners in Lake County, near Isabella, where there is intense interest by mining
companies in copper and other non-iron metal and In April 2011, four mining companies bid on
the rights to explore and drill on 22 of those mining units across about 22,000 acres, much of it in
west-central Lake County, near Isabella, in an area thought to be rich in copper.)754 What is
particularly disturbing about the Forest Services review of these properties is that the nearby state
mineral leases are found on national forest land. Surely the Forest Service could have looked at its
own records and realized that this is a potential mining area.
A similar situation exists for the Lake County South Lands, which are located about four miles from
the large area west of Tettegouche State Park that is under exploration by DMC.755 According to the
FEIS, Within the Lake County South parcel, one 40-acre parcel is subject to mineral reservation
that includes outstanding mineral interest with the right to sink, cave, disturb, or remove surface
material. Another parcel has one-half outstanding mineral interest with the right to remove but
doing no injury to the surface or else paying for damages.756 While this tract is farther from the
active exploration area than are the Wolf Lands, it is still close enough to make a judgment that the
land has low mineral development potential questionable.
The statements in the FEIS that these lands have low mineral development potential appears to
come straight from a report that Barr Engineering prepared for PolyMet.757 Barr Engineering is so
tied to the Minnesota mining industry that it is impossible to believe that the company was not
aware of mineral exploration in the Isabella and Tettegouche areas. It was the subject of
considerable controversy in the very year when the assessment was prepared (2011; the Barr
document is dated Dec. 1, 2011). We also note the careful wording of the Barr Report (appears to
and are not considered to have). 758 As for so many other issues, it appears that the Forest Service
has ignored the potential bias in the Barr report, and has simply adopted its conclusions without
looking farther.
752
MDNR, Exploration for Metallic Mineral Resources in Minnesota (Feb. 2015) (Map) (attached as
exhibit 51a).
753
FEIS 3-169.
754
John Myers, Disputed northern Minnesota mineral leases to be considered again, Duluth News
Tribune (May 22, 2012) (attached as exhibit 51b)
755
See Ex. 51a.
756
FEIS 4-460.
757
See, e.g., FEIS 4-465 (citing Barr 2011c).
758
Barr 2011c at 6.
171
Finally, we object to the inclusion of that portion of the Hay Lake Lands that has potential for
aggregate production.759 It is unclear from either the description of the tract or from state law
whether aggregate would go with the surface estate or the mineral estate. According to a DNR fact
sheet, the answer to this question is not uniform, but is based on the intent of the parties when the
mineral rights were severed from the surface estate.760 The FEIS does not say whether the minerals
on the Hay Lake Lands are reserved or outstanding; if they are outstanding, the Forest Service may
not have the authority to prevent the mineral owner from destroying the surface for aggregate
production.
CONCLUSION
The Conservation Organizations submit that the FEIS is inadequate in many ways, and the Forest
Service cannot determine that it is adequate based on the existing record. If the Forest Service
determines to move forward with the land exchange, it must first prepare a Supplemental EIS on the
topics described above, including but not limited to the alternative of dry stacking the tailings based
on new information from the Mt. Polley Independent Report, the potential for northward flow from
the mine based on new information regarding the Peter Mitchell Pit, and the missing information
regarding the status of affected RFSS wildlife and plant species on the Superior National Forest.
In addition, the land exchange as currently planned would violate FLPMA, NFMA, and the Weeks
Act. The Forest Service must thus choose the No Action Alternative.
Thank you for your consideration.
Marc Fink
Center for Biological Diversity
209 East 7th Street
Duluth, MN 55805
mfink@biologicaldiversity.org
219-464-0539
Kathryn M. Hoffman
26 East Exchange St, Ste. 206
St. Paul, MN 55101
khoffman@mncenter.org
561-287-4863
759
FEIS 4-459.
Minnesota DNR Dept. of Lands and Minerals, Mineral Rights Ownership in Minnesota, (2000)
(attached as exhibit 51c).
760
172
Betsy Daub
Friends of the Boundary Waters Wilderness
401 North 3rd St, Ste. 290
Minneapolis, MN 55401
betsy@friends-bwca.org
612-332-9630
Lori Andresen
Save Our Sky Blue Waters
306 West Superior Street Suite 920
Duluth, MN 55802
andres01@charter.net
Kristin Larsen
Friends of the Cloquet Valley State Forest
PO Box 3764
Duluth MN 55803
kristinl55803@gmail.com
218.464.6098
Margaret Levin
Sierra Club, North Star Chapter
2327 E. Franklin Ave. Suite 1
Minneapolis MN 55406
margaret.levin@sierraclub.org
Rachel Garwin
Northeastern Minnesotans for Wilderness
206 E Sheridan St.
Ely, MN 55731.
Rachel@savetheboundarywaters.org
Le Lind
Save Lake Superior Association
2948 E Castle Danger Rd
Two Harbors, MN 55616
llind@yahoo.com
Christina Hausman
Voyageurs National Park Association
126 North 3rd Street, Suite 400
Minneapolis, MN 55401
chausman@voyageurs.org
173
Christine Goepfert
National Park Conservation Association
546 Rice Street, Suite 100
St. Paul, MN 55103
cgoepfert@npca.org
Janine Blaeloch
Western Lands Project
1314 NE 43rd St
Suite 202
Seattle, WA 98105
blaeloch@westernlands.org
174

C.O. Objection Letter To PolyMet Land Exchange

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C.O. Objection Letter To PolyMet Land Exchange

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Conservation Organizations

Objection to the NorthMet Land Exchange and

Submitted to the United States Forest Service

Kathleen Atkinson, Reviewing Officer

Previous comments and other materials ............................................................................. 3

Exhibits and reports ............................................................................................................... 5

National Environmental Policy Act .................................................................................................. 6

Details of Financial Assurance Must Be Disclosed to Effectively Assess Mitigation Measures

Mineralization outside the pit envelope ............................................................................13

Alternatives to West Pit Filling. ..........................................................................................20

Alternative Methods of Dam Construction ......................................................................24

Tailings Basin and Dam .......................................................................................................39

Liners and covers ..................................................................................................................43

Leachate barrier and collection systems ............................................................................47

Hydrometallurgical Residue Facility...................................................................................50

Waste Water Treatment .......................................................................................................50

East Pit Water Pumping, Treatment and Return .............................................................52

Categorization of waste rock ..............................................................................................54

Water quality information ...................................................................................................54

Emergency Response Plans ................................................................................................54

Reclamation Plan ..................................................................................................................54

The volume of water from mine dewatering is uncertain...............................................65

The extent of bedrock fractures is uncertain ....................................................................65

The range of concentrations of constituents in leachate is uncertain ...........................65

Wetland Identification and Classification. ........................................................................77

Avoidance and Mitigation ...................................................................................................79

The FEISs discussion of financial assurance for wetland mitigation obligations is

17.4.3 Financial assurance instruments............................................................................88

Impacts of air deposition on wetland and stream water quality ....................................89

Loss of wetland value to the federal estate .......................................................................90

The cumulative effects analysis in the FEIS is inadequate ........................................................ 104

The FEIS does not assess cumulative impacts on wildlife........................................................ 112

Cumulative impacts on rare plants .................................................................................. 120

The Biological Evaluation was prepared by a contractor with a conflict of interest,

Assumptions regarding naturally occurring metals are unwarranted. ...................................... 132

The FEIS fails to consider alternative sources of electricity. .................................................... 133

Federal Land Policy and Management Act .................................................................................. 140

National Forest Management Act................................................................................................. 150

The Land Exchange is inconsistent with Watershed provisions. ............................................. 154

The Land Exchange is inconsistent with Vegetation provisions. ............................................ 157

Canada Lynx ....................................................................................................................... 158

Gray Wolf ........................................................................................................................... 160

Northern Long-Eared Bat ................................................................................................ 160

Northern Goshawks and Great Gray Owls................................................................... 161

RFSS Plant and Lichen Species ....................................................................................... 164

The Weeks Act ................................................................................................................................ 170

CONCLUSION ............................................................................................................................................ 172

Previous comments and other materials

All of the conservation organizations submitted comments on NorthMet Supplemental Draft

40 C.F.R. 1502.10(b) and 1503.4.

Exhibits and reports

Dr. David Chambers, geophysicist; focus: mining engineering and planning;

A. National Environmental Policy Act

Details of Financial Assurance Must Be Disclosed to Effectively Assess Mitigation

42 U.S.C. 4332(E); 40 CFR 1508.9(b).

App. B Attachment 1 at 6-7.

App. B attachment 1 at 7-8.

Mineralization outside the pit envelope

A graphic representation is also provided:

App. B attachment 1 at 3 (emphasis added).

Id. at 33-34, 37.

Miller Report attached to MCEA SDEIS comments, 2014, at 6.

Alternatives to West Pit Filling.