FINDINGS OF FACT FACILITY HISTORY

Transcription

1 STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY IN THE MATTER OF THE DENIAL OF CONTESTED CASE HEARING REQUESTS AND ISSUANCE OF MPCA CERTIFICATION UNDER SECTION 401 OF THE CLEAN WATER ACT FOR THE PROPOSED NORTHMET PROJECT ST LOUIS COUNTY HOYT LAKES AND BABBITT MINNESOTA FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER FINDINGS OF FACT This matter involves the issuance of a Section 401 Water Quality Certification (401 Certification) to Poly Met Mining, Inc. for the proposed NorthMet Project. During the public comment period, the MPCA received four requests for a contested case hearing on the 401 Certification. The MPCA must decide under applicable statues and rules whether to grant or deny, in whole or in part, the requests for a contested case hearing. Based on the MPCA staff review, comments and information received during the comment period, and other information in the record of the MPCA, the MPCA hereby issues the following,, and Order: Overview FACILITY HISTORY 1. Poly Met Mining, Inc. (PolyMet) proposes to develop a copper-nickel-platinum group elements mine and associated processing facilities. The Project consists of the Mine Site, the Plant Site, and the Transportation and Utility Corridors that connect them. The Mine Site is a relatively undisturbed site that will be developed into an open pit mine and is located approximately six miles south of the city of Babbitt and two miles south of the Northshore Mining Company s active, open pit taconite mine (known as Northshore Mining s Peter Mitchell Mine). The Plant Site is located at the former LTV Steel Mining Company (LTVSMC) / Cliffs Erie L.L.C. (Cliffs Erie) taconite processing facility located approximately six miles north of the city of Hoyt Lakes. It will include refurbished and new ore processing and waste disposal facilities. The Mine Site and the Plant Site are connected by transportation and Utility Corridors, which will include new and upgraded infrastructure to link activities at the Mine Site and Plant Site. Environmental Review 2. The proposed NorthMet Project underwent environmental review between 2005 and A Final Environmental Impact Statement was prepared and public comments were addressed in The Final Environmental Impact Statement (FEIS) was deemed adequate by the Minnesota Department of Natural Resources on March 3, The Final Environmental Impact Statement was not challenged by any party. wq-wwprm1-51kk 1 of 44 Doc Type:

2 Proposed Project Summary 3. PolyMet initially submitted its wetland permit application for the NorthMet Project to the U.S. Army Corps of Engineers ( USACE ) in July 2004 (USACE File # JKA) to fulfill the requirements of Section and 404 of the Clean Water Act. PolyMet submitted an updated wetland permit application to USACE on August 19, 2013, and an updated wetland replacement plan as part of its application for a Minnesota Department of Natural Resources ( MDNR ) Permit to Mine in December Additionally, PolyMet submitted its Surface Water Antidegradation Evaluation for the NorthMet Waste Water Treatment System in October 2017 and its Section 401 Certification Antidegradation Assessment in December The following is a summary of the proposed project as described by these documents. 4. The proposed project includes five areas: Mine Site, Plant Site (including the Process Plant Area, Tailings Basin, and Hydrometallurgical Residue Facility), the Transportation and Utility Corridors (including the Dunka Road Utility Corridor), the Railroad Connection Corridor, and the Colby Lake Pipeline Corridor. 5. The proposed Mine Site is a relatively undisturbed site that will be developed into an open pit mine. Development of the Mine Site for the Project will include construction of new facilities, including mine pits, ore handling facilities, waste rock stockpiles, an overburden storage area, mine water management systems, an equalization basin area, and supporting infrastructure. The Mine Site will occupy approximately 3,015 acres. 6. The proposed Plant Site is located approximately 7 miles west of the Mine Site. It is a developed site that includes a former taconite processing facility and tailings basin previously operated by LTV Steel Mining Company (LTVSMC). Redevelopment of the Plant Site for the Project will include refurbishment of former LTVSMC processing facilities and construction of new facilities. The Plant Site is a brownfield location, which occupies 4,417 acres. 7. PolyMet proposes to impact 127 wetlands, covering a total of acres. Direct impacts from excavation and/or fill are proposed for acres of wetland, and the remaining acres would become fragmented wetlands. PolyMet has proposed to mitigate the impacts through the purchase of no less than credits from the Superior Mitigation Bank located in the St. Louis River Watershed. 8. The Project s proposed impacts would occur in wetlands in the Embarrass River and Partridge River watersheds, which are in the St. Louis River watershed. The MPCA has evaluated these wetlands, as well as other water bodies (including receiving and downstream waters and the wetlands directly and indirectly impacted) in connection with the proposed 401 Certification. 9. The MPCA requested PolyMet conduct a cross-media analysis to address potential water quality concerns from dust deposition from the Project. This analysis included air modeling of potential facility-generated dust particles, an evaluation of the potential for release of sulfate and metals from oxidation of the deposited dust, and the resulting potential for impact on the quality of down-gradient waters, including wetlands. PolyMet submitted its Cross-Media Analysis to Assess Potential Effects on Water Quality from Project-Related Deposition of Sulfur and Metal 2 of 44

3 Air Emissions on October 31, 2017, with supplemental information submitted November 29, The analysis was reviewed by the MPCA s technical experts and the resulting conclusions were considered in developing the Section 401 Certification. 10. Minnesota has adopted beneficial uses applicable to the waters surrounding the Project area. The receiving waters for discharges from the Project in the Embarrass River watershed are headwater wetlands, which are class 2D, 3D, 4C, 5 and 6 waters, that drain to Trimble and Unnamed Creeks. Trimble and Unnamed Creeks themselves are class 2B, 3C, 4A, 4B, 5, and 6 waters. The receiving water for discharge in the Partridge River watershed is Second Creek, which is a class 2B, 3C, 4A, 4B, 5, and 6 water. All the above-identified waters are located in the Lake Superior basin and are classified as Outstanding International Resource Waters. The nearest downstream restricted Outstanding Resource Value Water (ORVW) is Lake Superior. There are no downstream prohibited ORVWs. Community Involvement in Process 11. The MPCA, in cooperation with the MDNR, developed a web portal for the PolyMet NorthMet Project. The portal was designed to give interested parties one place to find information regarding the proposed project as well as sign up for updates. The MPCA provided links to the permit application, updated supplemental permit applications, supporting documentation and reports via the portal. 12. An initial message to interested parties was sent when the application was received. Quarterly updates regarding progress on the permitting process were also provided via The MPCA provided the draft 401 Certification package via to a number of involved/interested Tribal entities on January 17, 2018, two weeks before the start of formal public notice, for the purpose of providing additional time for their review of the permit/certification packages. Tribal entities involved in this early review period included the Fond du Lac Band of Lake Superior Chippewa, the Grand Portage Band of Chippewa, the Bois Forte Band of Chippewa, the Leech Lake Band of Ojibwe, the Red Cliff Band of Lake Superior Chippewa Indians, the 1854 Treaty Authority, the Great Lakes Indian Fish and Wildlife Commission, and the Minnesota Chippewa Tribe. The MPCA also provided the draft permit/certification packages to the U.S. Environmental Protection Agency Region V at that time. 14. Public meetings were held on February 7, 2018, in Aurora, Minnesota, and on February 8, 2018, in Duluth, Minnesota. These public meetings were held during the public notice period. Representatives of both the MPCA and MDNR attended these meetings. The public meetings included an open house component where interested parties could ask questions and interact with staff. The public meetings also had opportunities for verbal comments to be recorded and written comments to be submitted. 3 of 44

4 Procedural History 15. Pursuant to Minn. R , the MPCA issued a public notice on January 31, 2018, of the MPCA Commissioner s preliminary determination to issue the draft 401 Certification. 16. The MPCA notified the public of the public comment period. The draft NPDES/SDS Permit, Fact Sheet, draft 401 Certification, and public notice documents were made available for review on the MPCA website at The MPCA provided a news release to 8490 recipients who subscribed to the PolyMet s NorthMet Mining Project News on January 31, In addition, the draft NPDES/SDS Permit, Fact Sheet, draft 401 Certification, and public notice documents were made available for review via the web portal at The public notice was also advertised in local newspapers. 17. The MPCA provided a public notice in advance of the two public meetings for the Project that were held on February 7 and February 8. The public notice for the public meeting was published in the Mesabi Daily News, the Duluth News Tribune, and the Babbitt Weekly on January 5, The public comment period for the proposed 401 Certification ended on March 16, During the 45-day comment period, the MPCA received four requests for contested case hearings on the 401 Certification. In addition, the MPCA received a total of 686 comment submittals from government agencies, Tribal Parties, environmental groups, and individual citizens on three separate regulatory matters public noticed concurrently (the draft 401 Certification; the draft NPDES/SDS permit; a draft Air Emissions Permit). The 686 comment submittals were then reviewed and sorted by their respective program/regulatory matter. There were 119 individual commenters on the 401 Certification. 19. The MPCA prepared responses to the contested case hearing requests received during the 45- day public comment period. The contested case hearing requests and detailed responses to the issues raised in the contested case hearing requests are incorporated by reference as Attachment A to these findings. 20. The MPCA reviewed the comments received during the 45-day public comment period, and considered whether to make changes to the draft 401 Certification in response to those comments. The MPCA is not required to prepare responses to individual comments on draft 401 Certifications; however, the MPCA did prepare general responses to comment themes compiled from individual comments received during the 45-day public comment period. The thematic grouping of comments and responses to those comments are incorporated as Attachment B to these findings. 21. The MPCA revised the 401 Certification to reflect revised wetland delineation calculations resulting from an investigation by the U.S. Army Corps of Engineers that concluded on December 13, The MPCA further revised the 401 Certification to incorporate more specific monitoring locations in the Wetland of Interest. 4 of 44

5 EVALUATION OF THE REQUESTS FOR A CONTESTED CASE HEARING 23. The public comment period for the draft permit began on January 31, 2018 and ended on March 16, During the 45-day comment period, the MPCA received four petitions for a contested case hearing on the 401 Certification. 24. Petitions were received requesting a contested case hearing on both the NPDES/SDS permit and the 401 Certification from the following parties: a. A joint petition from Save our Sky Blue Waters, Save Lake Superior Association and Wetlands Action Group; b. WaterLegacy; and c. Rich and Carol Staffon, Citizens. 25. The MPCA received a joint petition requesting a contested case hearing on the 401 Certification from Friends of the Boundary Waters Wilderness and the Center for Biological Diversity. 26. The rule language applicable to contested case hearing requests references both the Board and Commissioner. The Minnesota Legislature eliminated the MPCA Citizens Board effective July 1, (2015 Minn. Laws 1st Sp. Sess., ch. 4.) The June 2015 Citizens Board meeting was the final meeting of the Citizens Board. Therefore, the MPCA Commissioner will make the final decision concerning the contested case hearing request. s 27. Minn. R , subp. 2(A), Contested case petition contents, sets out the requirements of a petition for a contested case hearing as follows: A petition for a contested case hearing shall include the following information: (1) A statement of reasons or proposed findings supporting a board or commissioner decision to hold a contested case hearing pursuant to the criteria in part , subpart 1; and (2) A statement of the issues proposed to be addressed by a contested case hearing and the specific relief requested or resolution of the matter. 28. Minn. R , subp. 2(B) states: To the extent known by the petition, a petition for a contested case hearing may also include the following information: (1) A proposed list of prospective witnesses to be called, including experts, with a brief description of the proposed testimony or summary of evidence to be presented at a contested case hearing; (2) A proposed list of publications, references, or studies to be introduced and relied upon at a contested case hearing; and 5 of 44

6 (3) An estimate of the time required for petition to present the matter at a contested case hearing. 29. The MPCA notes that while the information specified in Minn. R , subp. 2(B) is not required in a contested case hearing petition, it is information that is helpful to the MPCA as it considers whether a hearing will aid the MPCA commissioner in making a final decision. 30. The MPCA decision whether to grant the petition is governed by Minn. R , subp. 1, Board or commissioner decision to hold contested case hearing, which states: The board or commissioner must grant the petition to hold a contested case hearing or order upon its own motion that a contested case hearing be held if it finds that: A. there is a material issue of fact in dispute concerning the matter pending before the board or commissioner; B. the board or commissioner has the jurisdiction to make a determination on the disputed material issue of fact; and C. there is a reasonable basis underlying the disputed material issue of fact or facts such that the holding of a contested case hearing would allow the introduction of information that would aid the board or commissioner in resolving the disputed facts in making a final decision on the matter. Minn. R , subp In order to satisfy the first criterion, Minn. R , subp. 1(A), the hearing requester must show there is a material issue of fact in dispute as opposed to a disputed issue of law or policy. A fact is material if its resolution will affect the outcome of the case. O Malley v. Ulland Brothers, 549 N.W.2d 889, 892 (Minn. 1996). 32. In order to satisfy the second criterion, Minn. R , subp. 1(B), the requester must show that the MPCA has jurisdiction or authority to make a determination on the disputed issues of material fact. Agencies are not permitted to act outside the jurisdictional boundaries of their enabling act. Cable Communications Board v. Nor West Cable, 356 N.W.2d 658, 668 (Minn. 1984). Therefore, each issue in the contested case request must be within the MPCA s authority to resolve. 33. Finally, under Minn. R , subp. 1(C), petitioners for a contested case hearing have the burden of demonstrating the existence of material facts that would aid the agency in making a decision before they are entitled to a contested case hearing. Matter of Solid Waste Permit for the NSP Red Wing Ash Disposal Facility, 421 N.W.2d 398, 404 (Minn. Ct. App. 1988). The Minnesota Supreme Court has recognized that to meet this standard, [i]t is simply not enough to raise questions or pose alternatives without some showing that evidence can be produced which is contrary to the action proposed by the agency. In the Matter of Amendment No. 4 to Air Emission Facility Permit, 454 N.W.2d 427, 430 (Minn. 1990). 34. The MPCA evaluated the requests for a contested case hearing by examining each of the issues raised in the petitions received, to determine if the petitions met each of the three criteria required in Minn. R , subp of 44

7 MPCA FINDINGS WITH RESPECT TO EACH OF THE CONTESTED CASE HEARING CRITERIA 35. The MPCA notes that the contested case hearing requests submitted by Save our Sky Blue Waters et al., WaterLegacy, and Friends of the Boundary Waters et al. were timely and included all of the information required by Minn. R , subp. 2(A). The issues outlined in the petitions received are addressed below. 36. The hearing request received from Rich and Carol Staffon did not contain the information required by Minn. R , subp. 2(A). However, a number of issues raised in the Staffon request were contained in the requests made by WaterLegacy. These issues can be found in Attachment A. 37. A number of issues fall under the jurisdiction of the Minnesota Department of Natural Resources and are not under the jurisdiction of the Commissioner. These issues are identified in Attachment A and are not addressed by this document. Contested Case Hearing Requests Received and MPCA Consideration of Requests 38. The following is a summary of the petitioners comments regarding the 401 Certification. Further details of each issue and the agency responses are contained in Attachment A to these. 39. On page 89 of its comments, WaterLegacy explains that its objections to the 401 Certification on the basis that it is premature are argued purely as a mat[t]er of law and policy. Accordingly, those comments do not justify a contested case hearing, which is available for a material issue of fact, not for disputes over law or policy. Minn. R subp. 1(A). It appears that WaterLegacy recognizes this distinction and is not seeking a contested case hearing on the 401 Certification. Nevertheless, the MPCA addresses WaterLegacy s comments below and individually in Attachment A. The antidegradation analysis performed for the NorthMet Project with respect to pollutants other than mercury and methylmercury is inadequate for both NPDES/SDS permitting and 401 Certification. (WaterLegacy) The MPCA failed to analyze degradation of surface water and groundwater at the mine site and plant site resulting from release of pollutants to bedrock groundwater and surficial aquifers. (WaterLegacy) 40. The Petition alleges that there are deficiencies in PolyMet s proposed plans for siting and seepage containment; liner leakage; overflow from maximum precipitation; contamination of non-contact stormwater; movement of pollution through bedrock; failure to adequately treat effluent; failure to determine where mine site surficial groundwater contaminants would first daylight to surface waters; failure to analyze mine site seepage with respect to antidegradation 7 of 44

8 requirements; and flowpaths indicating the tailings basin will contaminate residential wells. The Petition alleges that those deficiencies may cause or contribute to a violation of Minnesota water quality standards. 41. The MPCA disagrees with the allegations. The comment presumes failure of engineering controls required by the NPDES/SDS permit to control release of pollutants to groundwater. The MPCA reviewed all of the available information and concluded that NPDES/SDS permit conditions addressing siting and seepage containment systems can be met and will result in attainment of water quality standards. 42. The MPCA finds that the NPDES permit conditions reasonably assure that the degradation alleged in the comment will not occur. Further details on what the MPCA considered during the antidegradation review for the NPDES/SDS permit (which the 401 Certification Antidegradation Determination incorporated) are described in the NPDES/SDS permit Response to Comments Lines Multiple-543-EH through Multiple-543-EL. 43. The MPCA did not make any specific comments in the 401 Certification Fact Sheet on this issue, but considered these issues during the EIS process and during certification development. 44. The comment raises factual issues, but the comment does not identify any new facts that provide a reasonable basis for dispute. Because the comment did not raise specific new facts, and there is no reasonable basis underlying a dispute, the MPCA finds that a contested case hearing would not aid the commissioner and the comment does not meet the criterion of Minn. R , subp. 1(C). The MPCA failed to consider best practices that would serve as feasible and prudent prevention and mitigation measures to prevent or minimize degradation. (WaterLegacy) 45. The Petition alleges that the MPCA accepted outmoded technology and unreasonably rejected best available alternatives to address wastewater and avoid and minimize contamination to ground and surface water; specifically, it alleges that the MPCA failed to require a reverse osmosis water quality treatment system, failed to require liners for the tailings basin, the Category 1 waste rock stockpile, and the overburden storage and laydown area; should have required dry stack tailings storage and failed to reject the siting of the hydrometallurgical residue facility (HRF) near the flotation tailings basin. 46. The MPCA disagrees with the allegations. The MPCA has considered the overall design of the NorthMet project, including technologies proposed for storage of materials, and the containment, collection and treatment of process wastewaters. Design components and siting issues were thoroughly addressed in the EIS process and were further considered by the MPCA in the antidegradation review for the NPDES/SDS permitting process (which the 401 Certification Antidegradation Determination incorporated). Further details on this issue are provided in the NPDES/SDS Response to Comments Multiple-543-EN through Multiple-543-ES. 8 of 44

9 47. The comment raises a factual issue regarding alternatives considered; however, the MPCA finds that the same issues were raised in during environmental review where MDNR, in consultation with the MPCA, considered those issues. 48. The MPCA finds that the comment does not identify any new facts for the MPCA to consider, and provides no reasonable basis for a dispute. The MPCA therefore finds that a contested case hearing would not aid the commissioner in making a final decision and the criterion in Minn. R , subp. 1(C) is not satisfied. The 401 Certification for the PolyMet Project is premature (WaterLegacy) The 401 Certification is premature because NPDES/SDS issues are unresolved. (WaterLegacy) 49. The Petition alleges that the 401 Certification should be denied because it is premature due to substantial unresolved controversy regarding the NPDES/SDS permit. 50. The MPCA disagrees with the premise raised by the comment. Section 401 of the Clean Water Act (33 U.S.C. 1341) does not require completion of an NPDES permit, and in many cases a 401 Certification is issued in the absence of an NPDES permit. 51. The MPCA considered the anticipated NPDES permit conditions when developing the 401 certification. The MPCA finds that the 401 Certification incorporates the conditions necessary to protect water quality after accounting for the controls required by the NPDES permit. 52. The MPCA finds that the comment does not raise an issue of fact, but rather, raises a legal issue regarding the ability to certify a proposed project under 33 U.S.C Because the comment raises legal and not factual issues, the MPCA finds that a contested case hearing is not appropriate according to Minn. R , subp. 1(A). The draft 401 Certification is premature because the Section 404 permit application is outdated. (WaterLegacy) 53. The Petition alleges that 401 Certification should be denied due to the absence of an up-to-date Clean Water Act Section 404 permit application. The comment notes that the U.S. Army Corps of Engineers (USACE) relies on a wetland permit application for the project that was submitted on August 19, 2013, and public noticed by USACE in November This application contained a description of mitigation requirements and proposal for wetland mitigation that are notably different from PolyMet s current proposal addressed in the draft 401 Certification. 54. The Petition further alleges that USACE continues to work on a compensatory mitigation plan for wetlands that will be directly or indirectly impacted by the NorthMet project. 55. The MPCA disagrees with the premise raised by the comment. The MPCA evaluates application materials submitted in order to prepare a draft 401 Certification, and that includes application 9 of 44

10 materials submitted subsequent to USACE public notice of an application. Projects can and do evolve over time, and the MPCA uses the most up-to-date information provided to evaluate a project for compliance with water quality standards. Any discrepancies between proposals to the USACE and the MPCA must be resolved before 404 permit issuance, not before 401 Certification: if USACE found that the MPCA s 401 Certification required mitigation differing from that required by USACE, the final 404 permit (which incorporates the 401 Certification conditions) would either require both the 404 mitigation and the 401 mitigation; would be adjusted to be consistent with the 401 Certification; or would not be issued if such issues could not be resolved. The 401 Certification need not wait for USACE updates, and indeed, must precede issuance of a 404 permit. 56. The MPCA finds that the comment does not raise an issue of fact, but rather, raises a legal issue regarding the ability to certify a proposed project under 33 U.S.C Because the comment raises legal and not factual issues, the MPCA finds that a contested case hearing is not appropriate according to Minn. R , subp. 1(A). The 401 certification is premature because a beneficial use evaluation of the Upper Partridge River is needed. (WaterLegacy) 57. The Petition alleges that the draft 401 Certification is premature because a beneficial use evaluation of the Upper Partridge River must be conducted for the MDNR s water appropriation permit. The comment specifically notes that water appropriations for the Partridge River Headwaters has increased from 2,845 to 28,820 gallons per minute (GPM) in the MDNR s water appropriations permit, and suggests that the MPCA has no assurance that the water appropriation will comply with water quality standards, especially if the appropriation removes too much water and discharges occurring during low or no-flow conditions would cause higher contaminant concentrations. 58. The MPCA disagrees with the allegation regarding the prematurity of the 401 Certification. The MPCA assessed existing uses in the Partridge River (AUID ) in The comment misconstrues the appropriations permit application. The MDNR s water appropriations permit requires listing the maximum possible water usage, which is not equivalent to the actual anticipated usage necessary for the project: the project would not be expected to appropriate the maximum possible water usage on a regular basis. MDNR s water appropriations permits for the project require adaptive management actions, potentially including flow augmentation, in the event that monitoring shows that baseflow in the Partridge River is not maintained within +/- 20% of existing conditions. 60. The final certification includes a prohibition against loss of existing uses unless those uses are mitigated. This condition provides additional assurance that the project will meet state water quality standards. 61. The MPCA also notes that requirements and conditions of the MDNR water appropriations permit are beyond the scope of the 401 Certification, and are under the jurisdiction of MDNR. 10 of 44

11 62. The MPCA finds that the comment raises an issue of fact; however, it does not provide a reasonable basis for dispute as no new information was identified and it ignores available information. Therefore, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criterion in Minn. R , subp. 1(C) is not satisfied. The MPCA further finds that the commissioner does not have jurisdiction to determine adequacy of conditions in the MDNR water appropriations permit, and therefore cannot grant a contested case hearing on that issue. Minn. R , subp. 1(B). The acreage of wetlands affected by ore spillage from rail cars has not been accurately determined or remedied. (FBWW et al.) A predicted 97% reduction in ore spillage achieved through the refurbishment of rail cars was insufficiently justified in the FEIS. Without the unexplained reduction in spillage, hundreds of additional acres of wetland could see water quality violations for copper (primarily), and cobalt and nickel (to a lesser extent). (FBWW et al.) 63. The Petition alleges that wetland impacts have not been adequately characterized with regard to expected ore spillage from rail cars, and higher spillage amounts would result in large acreages of wetlands affected by copper, cobalt, and nickel, jeopardizing water quality. Specifically, the Petition alleges that the FEIS did not adequately support a predicted 97% reduction in ore spillage resulting from rail car refurbishment. 64. The MPCA disagrees with the allegation. The spillage reduction estimates in the FEIS resulted from an evaluation of identical refurbished rail cars. This evaluation found that refurbishment could reduce the gaps in the rail cars, thereby reducing spillage. This modification to the gaps was an input assumption used in the Waste Characterization Data Package. With the revised assumptions, the total spillage would be 0.20 tons per year, a 97 percent reduction from the original estimate of 6.14 tons per year. The MPCA determined that, after accounting for the 97 percent reduction, spillage would not cause or contribute to a water quality exceedance. 65. The Permit to Mine issued on November 1, 2018, requires PolyMet to refurbish railcars to minimize ore spillage as described above. 66. The MPCA finds that the comment raises a factual issue, but does not identify any new facts for the MPCA to consider and provides no reasonable basis for dispute. Therefore, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criterion of Minn. R , subp. 1(C), is not satisfied. The modeling inputs resulted in underestimated impacts to wetland acreage from railcar ore spillage (non-cross Media). (FBWW et al.) 67. The Petition alleges that FEIS modeling inappropriately used concentration caps for modeling leachate from waste rock piles, wrongly assumed a hardness of 100, and did not consider 11 of 44

12 ranges in ph though low ph in bogs could cause higher metal mobilization. As a result, the Petition alleges, water quality impacts to wetlands resulting from rail car ore spillage are underestimated. 68. The MPCA disagrees with the allegation. Waste rock characterization and associated assumptions are MDNR regulatory issues for the Permit to Mine. Geochemical predictions and assumptions associated with waste rock characterization, including the issue of concentration caps, were thoroughly addressed in the EIS. The EIS also considered waste rock reactivity under acidic conditions. The MPCA has reviewed this work and concurs with MDNR s analysis. The hardness assumed in the model is based on a reasonable assumption where monitoring data are not available. 69. Additionally, the MPCA notes that the draft NPDES/SDS permit requires monitoring at surface water crossings of the transportation corridor, and the draft 401 Certification requires monitoring at wetlands. Accordingly, if the foregoing assumptions are inaccurate, those errors will be discovered during monitoring and the MPCA will require the operator to take corrective action to protect wetlands. 70. The MPCA finds that the comment raises a factual issue, but does not identify any new facts for the MPCA to consider, and provides no reasonable basis for a dispute. Therefore, the MPCA finds that a contested case hearing would not aid the commissioner and the criterion of Minn. R , subp. 1(C) is not satisfied. The MPCA s 401 Certification must address aluminum because even with rail car improvements, any aluminum in ore spillage could exceed the aluminum water quality standard. Modeling showed water leaving the spillage strip as exceeding the WQS for aluminum, regardless of the 97 percent capture by rail car improvements. (FBWW et al.) 71. The Petition alleges that FEIS modeling showed that water leaving the rail car spillage strip would exceed the water quality standard for aluminum, regardless of the 97 percent reduction from rail car refurbishment, and therefore, the 401 Certification must specifically address aluminum. 72. The MPCA disagrees with the premise of the comment. While the comment notes a possibility of water exceeding water quality standards for aluminum, the FEIS analysis makes clear that this is the case even in the absence of the project. The MPCA sought and reviewed additional information regarding the potential effects of rail car spillage specific to aluminum, and concluded that the runoff from the rail right-of-way would not cause or contribute to an exceedance of water quality standards. See response to Comment 401 CCH-673 for further detail. 73. The MPCA finds that the comment raises an issue of fact, but does not identify new information. Because there is no new information provided, the MPCA has addressed the issue, and there is no reasonable basis underlying the claimed dispute, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criterion in Minn. R , subp. 1(C), is not satisfied. 12 of 44

13 The measures designated to reduce spillage are not enforceable. The 97 percent reduction in rail car spillage assumed by rail car refurbishment is not in the permit to mine application, or included in any of the proposed MDNR/MPCA permits to date. (FBWW et al.) 74. The Petition alleges that rail car spillage could cause water quality violations, because rail car modifications are unenforceable. 75. The MPCA disagrees with the allegations. The Permit to Mine includes a requirement to refurbish the rail cars. The MPCA sought and reviewed additional information regarding rail car spillage. The MPCA determined that the rail car refurbishment required by the Permit to Mine is consistent with the assumptions in the FEIS described in Paragraph 64. The comment did not identify any information to invalidate those findings. As a result, the MPCA determined that the 401 Certification does not need to impose additional requirements to refurbish rail cars. 76. The MPCA finds that the comment raises a legal question regarding the enforceability of assumptions made in the EIS. The MDNR s Permit to Mine requires rail car refurbishment and is enforceable by the MDNR. 77. The MPCA finds that because the comment does not raise a factual issue, a contested case hearing is not appropriate according to Minn. R , subp. 1(A). Additional requirements should be adopted in the 401 Certification to eliminate water quality standard exceedances. (FBWW et al.) 78. The Petition notes that PolyMet is planning to use refurbished side-dump rail cars after evaluating several options in its Rail Car Modifications Evaluation, and alleges that these rail car modifications are inadequate to prevent water quality violations. The Petition requests that the 401 Certification include a condition to require new rail cars with sealed compartments to eliminate rail car spillage that may cause water quality violations. 79. The MPCA disagrees with the allegations. This issue was considered in the EIS and the proposed method to refurbish rail cars was determined to be a sufficiently protective approach. The MDNR found the EIS adequate and it was not subsequently challenged. The MPCA considered this information and determined additional refurbishment was not necessary. 80. In addition, the Permit to Mine requires the rail car refurbishment. As discussed above, the MPCA finds that the refurbished rail cars will not cause or contribute to an exceedance of a water quality standard. 81. The MPCA finds that this comment raises a factual question regarding rail car options, but does not identify new information or provide other reasonable basis to support a hearing. Because the issue has been adequately addressed and there is no reasonable basis for a dispute, the 13 of 44

14 MPCA finds that a contested case hearing on this issue would not aid the commissioner and the criterion in Minn. R , subp. 1(C) is not satisfied. Exclusion of wetland impacts by sulfate and mercury from groundwater. The cross-media analysis did not include seepage from mine features with acknowledged leakage. None of the seepage sources contributing sulfate loading (tailings basin, Category 1, HRF, ponds, liners) were included in the cross-media analysis. (WaterLegacy) The cross-media analysis did not include leachate from mine features. (FBWW et al.) 82. The Petition alleges that sulfate loads from the various potential project seepage sources, such as the tailings basin, the HRF, waste rock stockpiles, and ponds, were not included in the crossmedia analysis. 83. The MPCA disagrees with the allegation that sulfate loads from potential seepage sources were not considered. The comment appears to be premised on an unfounded assumption that the engineering controls for the alleged seepage sources will not work as designed or will fail in the future, resulting in inadequately controlled sulfate releases. The effectiveness of project engineering controls was evaluated in the EIS, which found them to adequately protective of surface water and groundwater. The NPDES/SDS permit requires monitoring of project engineering controls and of downgradient groundwater, which can be used to compare against the MPCA assumptions. In addition, the permit requires an annual assessment of the performance controls based on the monitoring data. If data show a potential problem, the permit requires implementation of adaptive management. Because of the lengthy groundwater travel time, mitigation could easily occur long before groundwater reached surface water, including wetlands. See response to Comments 401 CCH-543-CM through 401 CCH-543-CR and 401 CCH-543-CT. 84. Regarding the specific allegation that the HRF is proposed to be built on an unsuitable site and an unstable foundation, the comment appears to be based on an unfounded assumption that issues associated with the HRF foundation will not be addressed and that the liner system will fail. However, the design components of the HRF were raised in the EIS. MDNR, in consultation with the MPCA, considered those issues. The issue of foundation stability was considered in the EIS and requirements for a detailed process of investigation, design and the MPCA approvals are included in the NPDES/SDS permit to address that issue. See response to Comment 401 CCH- 543-CP. 85. Regarding the specific allegation that the draft NPDES/SDS permit would not require capture of additional groundwater seepage from the south side of the tailings basin not captured by the existing pumpback system, the comment appears to be based on an unfounded assumption that the FTB south seepage capture system will not perform adequately. However, elements of the proposed capture system for the seepage were modeled and evaluated in the EIS. The PolyMet NPDES/SDS permit requires no discharge from the current seepage point. The proposed system will be designed to capture and collect all surface seepage. See response to Comment 401 CCH-543-CQ. 14 of 44

15 86. Regarding the specific allegation that the Wetland of Interest is located near the equalization basins and the ore surge pile and these facilities may seep, the comment appears to be based on an unfounded assumption that the liner systems for the equalization basins and the ore surge pile will not function. However, the NPDES/SDS permit requires an Equalization Basin Performance Evaluation Report, including a Pond Restoration Plan if any of the basins cannot meet the specified technical criteria. This is in addition to the permit-required annual assessment of engineering control performance based on the monitoring data with a requirement to implement adaptive management if needed to prevent adverse impact to groundwater. See response to Comment 401 CCH-543-CT. 87. The MPCA finds that the comment raises a factual issue, but the comment did not identify new facts to provide a reasonable basis for dispute. The MPCA has adequately addressed the issue and a contested case hearing would not aid the commissioner in making a final decision, so the criterion in Minn. R , subp. 1(C) has not been satisfied. In contrast to statements in the EIS that there is no established relationship between sulfate and mercury methylation, the MPCA s support document for the wild rice rule does not dispute that increased sulfate loading results in increased mercury methylation. Therefore, it is highly likely that sulfate from the tailings basin and other project sources would increase downstream mercury methylation. (WaterLegacy) 88. The Petition alleges the cross-media analysis did not appropriately consider information in the Myrbo study that acknowledges a relationship between increased sulfate loading and increased methylmercury production, and that the sulfate loads from uncaptured project seepage will result in increase in sulfate loading. The petition goes on to allege that sulfate from uncaptured project seepage will result in increased mercury methylation. 89. The MPCA disagrees with the premise that there will be increased sulfate loadings. The MPCA was already aware of the new sulfate study: as noted in the comment, MPCA staff co-authored the report. In addition to findings in the report cited by the commenter, the report also found that high levels of sulfate can inhibit methylmercury production. Another recent mercury study did not find a difference in mercury methylation comparing a chronically sulfate-impacted wetland and an unimpacted wetland. See response to Comment 401 CCH-543-CR. 90. The comment appears to be based on an unfounded assumption that the FTB and Category 1 stockpile seepage capture systems will not work as designed or will fail in the future. However, the comment does not provide facts to support that conclusion. The NPDES/SDS permit requires monitoring and an annual assessment of the controls performance based on the monitoring data with a requirement to implement adaptive management if needed. See response to Comment 401 CCH-543-CR. 91. The MPCA finds that the comment raises a factual issue, but does not present new information or any reasonable basis for dispute. In addition, the MPCA has adequately addressed the issue through permit conditions. Therefore, the MPCA finds that the criterion in Minn. R , 15 of 44

16 subp. 1(C), is not satisfied and a contested case hearing would not aid the commissioner in making a final decision. Small tributaries near site are sulfate limited. (WaterLegacy) 92. The Petition alleges that the small tributary streams proximal to the mine site demonstrated sulfate-limited conditions and that increases in sulfate to these waters would promote mercury methylation in the stream sediments. 93. The MPCA does not disagree that background sulfate concentrations in streams and wetlands around the mine site suggest methylation is sulfate-limited. The sulfate-limited condition of waters near the mine site was considered in the analysis. 94. The comment raises an issue of fact, but there is no dispute. Because there is no dispute, the criterion in Minn. R , subp. 1(A), is not satisfied and a contested case hearing is not appropriate. The cross-media analysis did not include impacts of sulfate and mercury in surface water released or discharged to wetlands. The cross-media analysis did not evaluate chemistry of noncontact stormwater. (WaterLegacy) 95. The Petition alleges that the chemistry of noncontact stormwater (i.e., water not in contact with mining surfaces) is not known and the elevated levels of sulfate and metals in this water as a result of mine activities is likely, could affect the WOI, and was not included in the crossmedia analysis. 96. The MPCA disagrees with the allegation that noncontact stormwater was not considered in the analysis. The analysis was specifically designed to account for the deposition reaching the wetland of interest, including deposition on uplands. The assumption was made that all runoff from uplands will contribute to the wetlands. Stormwater in the area of highest air deposition near the WOI either will be collected and routed to the equalization basins for subsequent treatment at the WWTS or will report to the WOI and is considered in the analysis. Any hotspots of deposition outside the watershed of the WOI receive less deposition than the WOI, and in many areas the runoff is collected for treatment. Noncontact stormwater from areas with significantly lower air deposition would be of sufficiently high quality that it would not change the outcome of the analysis. The MPCA concurred with the findings of the analysis on these points. See response to Comment 401 CCH-543-CU. 97. The Petition references the modeled deposition and concludes that stormwater may be affected. The MPCA does not disagree with this statement: the watershed of the WOI is predicted to receive higher deposition than the WOI itself. The cross-media analysis accounted for this, because it did consider deposition on upland areas. The Cross-Media Analysis Report notes that the analysis considered the transport and removal processes applicable to deposition on upland areas. 16 of 44

17 98. The MPCA finds that the comment raises a factual issue, but does not provide a reasonable basis to dispute the accuracy of the MPCA's analysis. Because the comment presents no new facts to provide a reasonable basis for dispute, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criterion in Minn. R , subp. 1(C), is not satisfied. The cross-media analysis assumes no overflows from equalization ponds or sumps. (WaterLegacy) 99. The Petition alleges that none of the wastewater storage sumps and ponds or the equalization basins are designed to fully contain a maximum precipitation event, there are no redundant pumps or piping to prevent overflow, and the cross-media analysis did not include the sulfate contribution from overflows from these facilities The MPCA disagrees with the allegation that pond overflows should be included in the analysis. The NPDES/SDS permit prohibits a discharge of wastewater from the Mine Site, which includes the equalization basins. The equalization basins and sumps are designed with three feet of freeboard, which is not included in the storm event sizing of the basins; this excess capacity is available should precipitation exceed the design event. Additionally, in a major storm event, water in the equalization basins can be pumped out to a mine pit or FTB preemptively and during the storm event. The permittee is responsible for ensuring that there is no discharge from the site and managing water levels accordingly. See response to Comments 401-CCH-CX and 401 CCH-543-CY The MPCA has included in the NPDES/SDS permit a provision that would require spare or backup equipment to be on hand or available for critical components. This would ensure the ability to pump out the ponds to prevent overflow even in the event of a power failure. See response to Comment 401 CCH-543-CZ The comment raises a factual issue, but does not provide a reasonable basis to dispute the accuracy of the MPCA's analysis. Because the comment presents no new facts to provide a reasonable basis for dispute, a contested case hearing would not aid the commissioner in making a final decision and the comment therefore does not satisfy the criterion in Minn. R , subp. 1(C). The cross-media analysis incorporated flawed predictions of mercury concentration in WWTS discharge. (WaterLegacy) 103. The Petition alleges that assumptions about mercury concentrations in tailings basin seepage and the treatment capabilities of the WWTS for mercury are unsupported. The petition further alleges that without a water quality based effluent limit on mercury there is no basis to assume that mercury in the discharge will not exceed 1.3 ng/l; thus, mercury contributions from the WWTS discharge should be included in the cross-media analysis The MPCA disagrees with the allegation that projected mercury concentrations in the WWTS are unsupported or will exceed water quality standards. The EIS concluded that the demonstrated ability of the NorthMet tailings to adsorb mercury, in combination with the 17 of 44

18 previously documented mercury removal capabilities of the underlying taconite tailings, would be expected to result in an overall increase in mercury adsorption and subsequently lower concentrations of mercury in FTB seepage. (This is an existing taconite facility.) Thus, the influent to the WWTS is expected to be approximately equal to the mercury water quality standard of 1.3 ng/l. The MPCA expects further removal by the greensand filtration and reverse osmosis components of the WWTS. The MPCA used this information in conjunction with the results of the pilot testing and the design modeling in the reasonable potential analysis, and determined there is no reasonable potential for mercury from the permitted facility to cause or contribute to an exceedance of water quality standards. The MPCA acknowledges that the referenced testing was of short duration, but no new information is presented that would lead the MPCA to conclude that the testing was invalid or to disagree with the conclusion presented in the EIS. See response to Comments Water-543-BQ and Water-543-BX through Water-543-CB To address concerns regarding mercury in the WWTS discharge, the MPCA has added to the NPDES/SDS permit an operating limit of 1.3 ng/l for mercury, additional dissolved mercury monitoring, and requirement to submit a Mercury Minimization Plan in accordance with the Agency's mercury strategy The MPCA finds that the comment raises a factual issue, but did not provide facts to reasonably show that the MPCA's analyses were invalid. Because there are no new facts presented to provide a reasonable basis for dispute, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision on the matter and the criterion in Minn. R , subp. 1(C), is not satisfied. The cross-media analysis did not consider impacts of loading inorganic mercury into wetlands and proximal wetlands were not adequately monitored during the EIS. (WaterLegacy) 107. The Petition alleges that the cross-media analysis failed to consider the impacts of inorganic mercury loading directly to wetlands, the primary sites for methylation The Petition further alleges that the failure to monitor wetlands near the mine site or tailings basin during the EIS, combined with the failure of the draft NPDES/SDS permit to require such monitoring in the future, will conceal violations of permit conditions and prevents an effective cumulative analysis The MPCA disagrees with the allegation. The MPCA considered the issue and concluded that the project would not have an effect on the loading of inorganic mercury into wetlands or on mercury impairments. The MPCA considered the relative impact, based on its experience in other wetlands in northern Minnesota, and found that the mercury deposited into these wetlands, including inorganic mercury, is predominantly background atmospheric deposition. In addition, mercury already deposited would outweigh the minimal new deposition from the project. The MPCA considered the effects from project emissions, including inorganic mercury, and concluded deposition would be minimal. As a result, the degree or extent of existing impairments is not expected to change. The 401 Certification requires monitoring of 22 wetlands around the project site to provide confirmation of this analysis. 18 of 44

19 110. The MPCA finds that the comments raise factual issues, but there is not a reasonable basis to believe that the project would have a material effect on the loading of inorganic mercury into wetlands or on mercury impairments. The comment did not raise any new facts to consider and the MPCA adequately addressed the issue. Because there are no new facts presented to provide a reasonable basis for dispute, a contested case hearing would not aid the commissioner in making a final decision and the criterion in Minn. R , subp. 1(C), is not satisfied. The cross-media analysis did not analyze effects on stream and wetland hydrology from Project. Wetlands near mine site are within the zone of pit dewatering drawdown; prolonged water drawdowns increase methylation, make methylmercury and sulfate more available for export, and increase metal mobilization; and reflooding after mining ends would result in export. (WaterLegacy, FBWW et al.) 111. The Petitions allege that the cross-media analysis did not take into account that wetlands near the mine site are located within the zone of mine pit dewatering drawdown and prolonged water drawdowns would increase mercury methylation and metal mobilization, making them more available for export especially when hydrology conditions change after mining ends The MPCA disagrees with the allegation that this issue was not considered in the analysis. This issue was raised and considered in the EIS, and it was determined that the available evidence does not support a significant drawdown occurring in wetlands adjacent to the project area that would lead to the effects in the comment. The MPCA consulted on this issue during the environmental review process and agrees with this determination. The comment does not provide a reasonable basis to dispute that analysis. Monitoring of wetland water levels, as recommended by the EIS, is included in permits for the project. Furthermore, if there were an extended drawdown as claimed, the wetland would likely function as upland and methylating potential would not increase. See response to Comment 401 CCH-543-DE The MPCA finds that this comment raises an issue of fact, but it does not have a reasonable basis and the MPCA adequately addressed the issue by requiring monitoring. Because there are no new facts presented to provide a reasonable basis for dispute and the MPCA addressed the issue, a contested case hearing would not aid the commissioner in making a final decision and the criterion in Minn. R , subp. 1(C) has not been satisfied. Drying and rewetting of peat overburden in the unlined overburden storage and laydown area will enhance mercury and methylmercury export. (WaterLegacy) 114. The Petition alleges that the cross-media analysis did not consider that drying and rewetting of peat overburden in the unlined overburden storage and laydown area will result in repeated flushes of methylmercury as well as inorganic mercury. 19 of 44

20 115. The MPCA disagrees with the allegation. This issue was raised and considered in the FEIS, and MDNR determined, in consultation with the MPCA, that the proposed collection and treatment of runoff from the overburden storage and laydown area would adequately address the issue. Runoff from the overburden storage and laydown area is governed and monitored by the NPDES/SDS permit, and possible effects will be evaluated by downgradient groundwater monitoring. Runoff from the OSLA will be collected and routed to the FTB. Any seepage that leaves the FTB would be treated by the wastewater treatment system and would be subject to the mercury operating limit. See response to Comment 401 CCH-543-DF The MPCA finds this issue has been adequately addressed. Furthermore, the MPCA finds that because there are no new facts presented to provide a reasonable basis for dispute, a contested case hearing would not aid the commissioner in reaching a final decision and the criterion in Minn. R , subp. 1(C) is not satisfied. Drying and rewetting of wetlands will enhance weathering and the release of sulfate from chalcopyrite particles. (WaterLegacy) 117. The Petition alleges that the dewatering, drying and rewetting of wetlands as a result of the project would enhance weathering and permit the release of sulfide minerals over a period of years, thereby affecting the predictions of the release of sulfide from chalcopyrite that were used in the cross-media analysis The petition further alleges that the cross-media analysis did not adequately address the effects that hydrologic changes as a result of the project (e.g., as a result of change in watershed area) would have on the WOI and that the analysis did not analyze the impacts of drying and rewetting on any other wetland that could be affected by mine pit dewatering or tailings basin seepage The MPCA disagrees with the allegation that this issue would influence the analysis. The mineral reaction rate is governed by the mineral type and conditions around the mineral. The analysis assumed a reasonable rate in oxidative conditions and the commenter did not provide a basis to contradict that rate. The MPCA concurred with this analysis. In essence, the analysis assumed an uninterrupted reaction, rather than an intermittent reaction, which is a protective assumption. Assuming a drying and rewetting cycle would reduce the reaction rate by imposing periods when the mineral would not react, in contrast with the MPCA s assumption of an uninterrupted reaction. See Response to Comment 401 CCH-543-DG The comment raises an issue of fact, but the MPCA considered the comment and found there is not a reasonable basis for dispute. Therefore, the criterion in Minn. R , subp. 1(C) has not been satisfied and a contested case hearing would not aid the commissioner in making a final decision. The ratio of methylmercury to total mercury in the Partridge and Embarrass Rivers is indicative of a highly methylating environment. (WaterLegacy) 20 of 44

21 121. The Petition alleges that the existing wetlands are known to be highly methylating and that the ratio of methylmercury to total mercury is higher here than elsewhere The MPCA does not disagree with the data presented in the comment, or the conclusion that these wetlands have a higher fraction of methylmercury. These facts were considered in the analysis The comment raises a factual issue, but the MPCA does not disagree. Because there is no dispute, a hearing is not appropriate and the criterion in Minn. R , subp. 1(A) is not satisfied. Air modeling protocol used in the cross-media analysis excluded many sources of sulfur. The cross-media analysis excluded fine particulate matter smaller than ten microns (PM10) from stacks (and assumed stacks were only PM2.5). (WaterLegacy) 124. The Petition alleges the air modeling protocol for the cross-media analysis excluded the significant contribution of PM10 fine particulates from plant site stacks and project vehicle exhaust, asserting that stack emissions are assumed to include only PM2.5 particles, in conflict with information in the air permit application The MPCA disagrees with the allegation. The comment references the information already presented to the MPCA, but appears to misinterpret it. Particulate matter larger than PM2.5 is a very small component of the total estimated emissions and would not significantly influence the magnitude of near source deposition. As shown on the chart at page 60 of the comment, when accounting for emission controls the PM10 size fraction is only approximately two percent greater than the PM2.5 fraction. The PM10 fraction includes all emissions smaller than 10 microns, which includes all emissions at PM2.5. In other words, the PM2.5 and PM10 emissions are not additive because the PM10 is primarily comprised of PM2.5. The MPCA concurred in the findings of the cross-media analysis on this point and determined that modeling the larger fraction would have minimal effect because the point source emissions larger than PM2.5 are such a small portion of the total emissions. Accounting for the small increase would be negligible in the overall deposition. See response to Comment 401 CCH-543-DI The MPCA finds that the comment raises an issue of fact, but it is not material and does not have a reasonable basis. Because there is no material fact in dispute, and no reasonable basis for a dispute, the MPCA finds that the criteria in Minn. R , subp. 1(A) and (C), are not met and a contested case hearing would not aid the commissioner in making a final decision. The exclusion of PM10 emissions from the cross media analysis underestimates local deposition. (WaterLegacy) 127. The Petition alleges that since PM10 particles are heavier and more likely to be deposited locally than PM2.5 particles, the exclusion of PM10 particles from controlled sources such as fugitive dust and vehicle exhaust in the modeling underestimates the effects of local deposition. 21 of 44

22 128. The MPCA disagrees with the allegation. Contrary to the comment, fugitive dust emissions were incorporated into the modeling analysis. Vehicle exhaust was not included in the modeling because the vast majority of particulates from vehicle exhaust (typically around 90 percent or more) is PM2.5 or smaller, which is unlikely to deposit locally. The MPCA does not dispute that the larger particles would typically result in greater nearby deposition. See response to Comment 401 CCH-543-DJ The MPCA finds that the comment raises an issue of fact, but it is not material and has no reasonable basis. Because there is no material fact in dispute, and no reasonable basis for a dispute, the MPCA finds that a contested case hearing would not aid the commissioner and the criteria of Minn. R , subp. 1(A) and (C) are not satisfied. The cross-media analysis excluded wet deposition of stack emissions, which affects modeling predictions of deposition on local wetlands. (WaterLegacy) 130. The Petition alleges that the cross media excludes wet deposition of stack emissions which, although affecting only a few percent of total sulfur mass, decreases the estimated likelihood that sulfur compounds in stack emissions will be deposited on local wetlands and watersheds The MPCA disagrees with the allegation that wet deposition was not considered. The MPCA already considered the contribution of wet deposition emissions. Stacks are a small percentage of the total emissions from the project and wet deposition is a small fraction of that. The MPCA determined that defining the wet fraction would result in negligible change to the estimates, even at near-source locations, and would not affect the results of the analysis The MPCA finds that this comment raises an issue of fact, but it is not material. Because no new facts were raised and there is no material fact in dispute, and there is no reasonable basis for dispute, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria of Minn. R , subp. 1(A) and (C) are not satisfied. The cross-media analysis excluded fugitive dust from blasting, rock handling, and wind erosion of stockpiles. Fugitive emissions at both the mine site and plant site have high proportions of PM10 (relative to PM2.5) resulting in greater nearby deposition. (WaterLegacy) 133. The Petition alleges the cross media analysis excluded fugitive dust from blast hole drilling, rock handling, blasting and wind erosion from waste rock stockpiles, thereby underestimating fugitive emissions The MPCA disagrees with the allegation that these sources were not considered. The MPCA specifically did consider blast hole drilling and rock handling in the modeling. The MPCA determined that emissions from blasting did not need to be included in the air deposition modeling for the cross-media analysis because effects of blasting will be controlled through conditions in the fugitive dust control plan, which is an enforceable part of the air quality permit. See response to Comment 401 CCH-543-DL. 22 of 44

23 135. The MPCA determined that it was not necessary to include wind erosion of stockpiles based on the low frequency of high wind speeds, the speed necessary to lift off stockpile particles, and short distance such particles travel. Considering those factors in combination, the MPCA concluded the effects would be minimal. In contrast, the MPCA considered the same factors when evaluating the tailings basin and determined that they did need to be included in the model. See response to Comment 401 CCH-543-DM The MPCA finds that the comment raises an issue of fact, but it is not material and the MPCA already considered the issue. Because no new facts were raised, there is no material fact in dispute, and the MPCA adequately addressed the issue, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria of Minn. R , subp. 1(A) and (C) are not satisfied. The cross-media analysis excluded particles greater than 30 µm from the air deposition modeling. (WaterLegacy) 137. The Petition alleges that the cross media air modeling excluded particles greater than 30 microns, thereby underestimating deposition in wetlands within 30 meters of dust sources at the mine site, plant site, and railroad corridor The MPCA disagrees with the allegation that these particles were inappropriately excluded. The MPCA concurred with the assessment that particles larger than 30 µm would land very near source and would likely be buried in a wetland prior to complete dissolution. To the extent these particles landed near their Mine Site sources, they would predominantly be collected with mine "contact" water for treatment. Dust from loading and unloading of rail cars was included in the modeling. Emissions from mobile sources, including dust from loaded rail cars in transit, were not included in modeling required for air quality permitting and consequently were not carried forward into the cross-media analysis. Limited information exists on particulate emission factors for course particles greater than 30 µm from rail transport of ore; however, as part of the Impact Assessment Planning process during the development of the EIS, the Air IAP workgroup determined that any effects on air quality from fugitive dust from rail transport would be minimal due to the coarse nature of the ore. The MPCA participated in this workgroup and concurred with its findings. See response to Comment 401 CCH-543-DO The MPCA finds that this comment raises an issue of fact, but it does not present any specific new facts or provide a reasonable basis for the dispute. Because no new facts were raised, the MPCA adequately addressed the issue, and there is no reasonable basis for a dispute, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria of Minn. R , subp. 1(A) and (C) are not satisfied. The cross-media analysis did not consider ore spillage from rail cars The Petition alleges that the EIS concluded that surface water quality in the Partridge River tributaries crossed by the rail corridor could be affected by ore spillage from the rail cars but these contributions were not considered by the cross-media analysis. 23 of 44

24 141. The MPCA disagrees that contributions from rail car spillage were not considered. Analysis in the FEIS evaluated the potential indirect effects to wetlands from rail car spillage, including the contribution of larger particles. Additional analysis was conducted by PolyMet and reviewed by the MPCA, as part of and after the EIS, for copper, cobalt, nickel and aluminum, which concluded that runoff from the railways would not cause exceedances of water quality standards. As it relates to the cross media analysis, if metals are not being released to wetlands along the railroad corridor in significant concentrations from ore spillage, sulfur associated with the metal-sulfide minerals is also not being released in significant concentrations. See response to Comments 401 CCH-543-DO and 401 CCH-671 through 401 CCH The MPCA finds that this comment raises an issue of fact, but it does not present any specific new facts or provide a reasonable basis for the dispute. Because no new facts were raised, the MPCA adequately addressed the issue, and there is no reasonable basis for a dispute, a contested case hearing would not aid the commissioner and the criteria of Minn. R , subp. 1(A) and (C) are not satisfied. The cross-media analysis excluded receptors, including some wetlands, within the rectangular blocks used in the air deposition modeling to represent the mine pits. (WaterLegacy) 143. The Petition alleges that receptors within the rectangular boundaries surrounding the irregular mine pits, including some wetlands, were excluded from the air deposition modeling, which resulted in unexpectedly low predictions of sulfide deposition in several areas The MPCA disagrees with the allegation. The analysis modeled each pit as a single source. Receptors immediately outside the pits did not indicate hotspots as compared to receptors near and downwind from the rail transfer hopper. The MPCA notes that, contrary to the commenter's claims, some receptors are in wetlands within the area sources rectangular blocks. The MPCA concurred with the conclusions of the analysis on this point. See response to Comment 401 CCH-543-DN The MPCA finds that this comment raises an issue of fact, but it is not material and the comment does not raise any specific new facts. Because no new facts were raised, the MPCA adequately addressed the issue, and there is no reasonable basis for a dispute, the MPCA finds that a contested case hearing would not aid the commissioner and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. The cross-media analysis did not include primary air deposition of mercury from project sources or properly consider the contributions of primary mercury on the wetlands evaluated. The cross-media analysis did not include primary air deposition of mercury at evaluation locations proximate to emission sources, including near the autoclave stacks at SD026. (WaterLegacy) 146. The Petition alleges that the cross-media analysis did not include evaluation locations near SD026 for assessing primary air deposition of mercury from the Project autoclave stack located near SD026. The Petition claims the result is that the Second Creek evaluation point used in the analysis is too far downstream. 24 of 44

25 147. The MPCA disagrees with the allegation. MPCA reviewed the AERA modeling conducted during the EIS process. That modeling evaluated contributions of mercury (which were primarily elemental, but also ionic and particulate) from the autoclave. Effects on local deposition did not exceed facilities' risk guidelines. The evaluation point downstream on Second Creek was selected to reflect the cumulative effects from potential emission sources at the Plant Site The MPCA finds that the comment raises an issue of fact, but it does not have a reasonable basis. Because no new facts were raised, the MPCA adequately addressed the issue, and there is no reasonable basis for a dispute, the MPCA finds that a contested case hearing would not aid the commissioner and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. The cross-media analysis excludes the impacts of mercury air deposition to uplands or wetlands, except at the wetland of interest The Petition alleges that the cross-media analysis excludes the impacts of mercury air deposition to uplands or wetlands, except at the wetland of interest. The Petition states that peer-reviewed literature does not support the blanket exclusion of all mercury deposited to wetlands The MPCA disagrees with the allegation. The analysis did account for mercury deposition on upland features (and thus deposition reaching rivers) by assuming the same portion of mercury would interact with sulfate. Existing mercury deposition (i.e., background conditions) is far greater than the modeled deposition caused by the project. The project will emit a negligible amount of mercury and have an immeasurably small impact. The comment appears to assume that 100% of mercury emitted at the site will deposit on site, but does not provide a basis for that assumption. As explained in the Statewide Mercury TMDL, the vast majority (90%) of mercury deposition in the state originates from sources outside Minnesota; mercury does not all deposit locally. See response to Comment 401 CCH-543-DS The MPCA finds that the comment raised no new facts and no reasonable basis for dispute, and the MPCA already addressed the issue by considering mercury in its analysis. Therefore, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. The cross-media analysis did not include mercury contributions from mine site vehicles, even though this mercury is likely to be deposited locally and not be particle bound. (WaterLegacy) 152. The Petition alleges the cross-media analysis did not consider mercury air emissions from mine site sources, even though they are predominantly vehicle emissions and likely to be locally deposited. The Petitions argue that excluding local deposition of mine site mercury from vehicle emissions and fugitive dust substantially and inappropriately minimizes the effects of mercury air deposition on the wetlands near the proposed mine and plant sites The MPCA disagrees with the allegation. The MPCA did account for mercury in vehicle dust from unpaved roads. Based on information provided in PolyMet's air quality permit application the 25 of 44

26 fugitive emissions from unpaved roads are a very small percentage (<2.5%) of the overall small total mercury emissions from the project (the majority of which come from the autoclave). Mercury from vehicle emissions is an even smaller percentage of the total project mercury emissions. See response to Comment 401 CCH-543-DT. Also see paragraph 128 regarding vehicle exhaust Because no new facts were presented, the MPCA addressed the issue, and there is no reasonable basis for a dispute, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. The cross-media analysis provided a misleading analysis of mercury methylation in a single wetland of interest. The analysis should have included additional evaluation points; the WOI is not the only location likely impacted by air deposition of sulfide minerals. The cross-media analysis should have included additional evaluation points within the isopleth showing elevated mercury deposition to wetlands beyond the WOI that take into account other factors that contribute sulfate to area wetlands. (WaterLegacy) 155. The Petition alleges that the cross-media analysis should have included additional evaluation locations such as PM-11 and Heikkila Lake, which are within the isopleth showing elevated mercury deposition to wetlands, because they better reflect sulfate contributions to area wetlands The MPCA disagrees that the analysis needed to specifically evaluate wetlands near PM-11 and Heikkila Lake. The air modeling included receptors near PM-11, which is estimated to receive minimal deposition. The estimated air deposition concentrations north of the tailings basin are a small fraction of the concentrations at the WOI. Because there was no measurable change found in the areas with higher deposition estimates, it is not reasonable to conclude that PM-11 would be affected more. The comment had no information to suggest other locations would experience greater effects from lower deposition rates. Based on the estimates, Heikkila Lake would have even less deposition than the negligible amount going to PM-11. See response to Comments 401 CCH-543-DQ and 401 CCH-543-DR The MPCA finds that the comment raises an issue of fact, but it is not material and the comment does not raise any specific new facts. Because no new facts were raised, the MPCA adequately addressed the issue, and there is no reasonable basis for a dispute, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. Misleading analysis of mercury methylation in a single wetland of interest The Petition alleges that the analysis of mercury methylation in a single wetland is flawed; not only did it not consider surficial aquifer seepage, it also did not consider sulfate loading from mine site surface water or mine site vehicle emissions. Further, the Petition cited its expert s 26 of 44

27 report that by using the mine site location with the highest sulfate loading from dust deposition, this would result in a sulfate load 3.76 times the background deposition rate, resulting in a substantial stimulatory effect on peatland methylmercury production. If existing hydrologic conditions at the WOI will be maintained by channeling mine site surface water, the mercury loading from this surface water must be considered The petition further alleges that sulfate loading impacts would continue after deposition stops The MPCA disagrees with the allegations. The MPCA specifically considered the comments and the report by the commenter's expert in its review of the cross-media analysis. An underlying assumption in the expert report is that the deposition from the project is 1.26 g/m 2 /yr across the mine site. The modeling conducted for the cross-media analysis showed that the assumed rate of deposition would be met in only one receptor, which has the highest modeled deposition. That single receptor is within the ore surge pile. Wastewater and stormwater from that site is collected and routed to the equalization basins and then to the WWTS for treatment. It does not report directly to a wetland as the comment assumes. The modeling which incorporated numerous protective assumptions further showed that no receptor within the wetland itself receives more than 32% of the assumed rate. The WOI watershed would receive only 20 percent of the rate assumed in the expert report. The WOI and its watershed would be subject to more deposition than any other surface waters. Because the predicted deposition is much less than assumed in the comment, the effects are consequently smaller. The MPCA reviewed and concurred with these findings of the report. See response to Comment 401 CCH- 543-DU The MPCA disagrees with the inference that by not accounting for delayed effects, the analysis is flawed. The MPCA determined that the effect of sulfate deposition will be limited after mining operations cease for several reasons: (a) new contributions of sulfide mineral particles will essentially cease after operations end, (b) ongoing adsorption and uptake will reduce the concentrations available for release to the water, and (c) the water cycle within the wetland after operations will reduce accumulation within the water column Because no new facts were presented, the MPCA addressed the issue, and there is no reasonable basis for a dispute, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. The analysis underestimates total sulfate loading in areas south of Dunka Road The Petition alleges that the estimates in the analysis of potential atmospheric loading of sulfate are not consistent with estimates considered during the EIS process and that the predictions for areas south of Dunka Road, including the WOI, fail to consider inputs of sulfate through surficial aquifer seepage The MPCA disagrees with the allegation. The MPCA considered the potential impacts of mercury and sulfate loading identified in the EIS. Furthermore, conditions in the NPDES/SDS permit prohibit discharge to surface water from the mine site. The engineering controls are 27 of 44

28 designed to restrict releases of sulfate (and other constituents) to groundwater and the monitoring required in the NPDES/SDS permit will verify their efficacy. The comment assumes that the controls will be ineffective without providing a reasonable basis for that assumption. See response to Comment 401 CCH-543-DV The MPCA finds that this comment raises an issue of fact, but it does not present new facts or a reasonable basis for dispute. Because there is no reasonable basis for a dispute, no new facts were presented, and the MPCA addressed the issue, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. The analysis should have included additional wetland study areas to account for factors that could increase mercury methylation and the variability of inputs and wetland types 166. The Petition alleges that the analysis should have included additional wetland study areas that would take into account the sources and composition of seepage, locations of intentional surface discharge and mine site stormwater release, locations most likely to be affected by mine dewatering and tailings seepage collection, proximity to both point source and fugitive dust deposition of sulfur compounds, and mercury air deposition. The Petition proposed additional wetland study areas: a south tailings basin wetland near the headwaters of Second Creek (SD026), a north tailings basin wetland, and a north mine site wetland The MPCA disagrees that the analysis needed to specifically evaluate wetlands near SD026. The MPCA notes that the purpose of past seepage capture at SD026 was to meet effluent limits, not to eliminate seepage. See response to Comment Water-543-AM. The commenter disagreed that the permittee will have the ability to capture additional seepage, but did not provide a factual basis to support that position. As indicated in the Cross Media Report, predicted particle deposition concentrations near SD026 are consistently lower than in the wetland of interest (the lowest predicted concentrations at the WOI are roughly equal to the highest predicted concentrations at SD026) and the deposition to the watershed from the project is a small fraction of the background deposition rate. Due to the negligible predicted deposition, the MPCA determined there would be no need to evaluate deposition at SD026. See response to Comment 401 CCH DY The MPCA disagrees that the analysis needed to specifically evaluate a north tailings basin wetland. The MPCA considered the relative particle deposition rates at different locations and determined that the rate at this location would be far less than the rate at the WOI. Estimated project deposition near the headwaters of Unnamed Creek is less than 5% of background. The modeling did include wind erosion from the FTB, which is not far from SD026. The modeling did not include blasting itself or wind erosion of stockpiles see Paragraphs The comment is based in part on assumptions of failed controls required in the NPDES/SDS permit, but the comment does not provide a reasonable basis for assuming such failure The MPCA disagrees that the analysis needed to specifically evaluate a north mine site wetland. As described above, the MPCA considered the relative deposition rates at different locations 28 of 44

29 and determined that the rate at this location would be far less than at the WOI. The comment appears to be based on assumptions of failed controls, but does not provide a reasonable basis for assuming such failure. Also see response to Comments 401 CCH-543-DP through 401 CCH- 543-DR Because no new facts were presented, the MPCA adequately addressed the issue, and there is no reasonable basis for a dispute, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. The Project mercury mass balance conducted for the EIS and used in the cross-media analysis is erroneous and too simplistic, thereby minimizing the cumulative potential determined for mercury and methylmercury impacts. The EIS mercury mass balance used for the cross-media analysis does not mechanistically incorporate the input and removal process and does not address biogeochemical aspects of mercury. (WaterLegacy) 171. The Petition alleges the mercury mass balance developed for the EIS and used for the crossmedia analysis is too simplistic, cannot mechanistically incorporate the input and removal process, and cannot address biogeochemical aspects of mercury methylation across the landscape. The petition alleges the result is that the mass balance is erroneous The MPCA disagrees with the allegation. This issue was considered in the mercury balance discussion of the EIS (which provided the basis for using a mass balance approach for the analysis of mercury-related effects). The commenter raised this issue before the cross-media report was developed and the commenter did not provide new information in the present comments. The MPCA review considered the already-available expert comments and relied on the agency's judgment to analyze the available data. The MPCA determined the mass balance method to evaluate mercury is appropriate given the data available. In addition, the conceptual model used is more transparent and relies on fewer untested assumptions than a complex model that incorporates input and removal processes for methylation. See response to Comment 401 CCH-543-EB Because no new facts were presented, the MPCA has adequately addressed the issue, and there is no reasonable basis for a dispute, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. The EIS mercury mass balance used for the cross-media analysis did not include seepage, stormwater or pond overflow components. (WaterLegacy) 174. The Petition alleges the mercury mass balance developed for the EIS and used for the crossmedia analysis did not include contributions of mercury from seepage from Project facilities, 29 of 44

30 noncontact stormwater from the Project, or from potential overflows from Project sumps and ponds, and is therefore unrealistic and erroneous The MPCA disagrees with the allegation. The MPCA considered this issue in its review of the mercury mass balance discussion in the EIS process. The commenter raised this issue before the Cross-Media Report was developed and the commenter did not provide new information in the present comments. The review of the analysis MPCA conducted relied on the agency's judgment to analyze the available data. The NPDES/SDS permit prohibits discharges from the potential seepage and overflow sources assumed in the comment. In addition, the mercury balance for the EIS included stormwater runoff from undisturbed and reclaimed areas. The comment criticizes the assumptions of compliance with permit terms, but it does not provide a reasonable basis for concluding that noncompliance will occur. There is no apparent basis for the dispute, and the MPCA believes that it adequately addressed the issue of the mass balance calculation. See response to Comment 401 CCH-543-EC Because no new facts were presented, the MPCA addressed the issue, and there is no reasonable basis for a dispute, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. The mercury mass balance used for the cross-media analysis did not consider mercury contributions from air deposition or mercury methylation from sulfate loading. (WaterLegacy) 177. The Petition alleges the mercury mass balance used for the cross-media analysis did not consider mercury contributions from air deposition or methylmercury production from sulfate loading in wetlands, which results in minimization of Project mercury impacts The MPCA disagrees with the allegation. The cross-media analysis specifically included evaluation of cumulative effects that included air deposition, and the MPCA reviewed and largely concurred with that analysis, or described its disagreements with that analysis in its review memo. The commenter raised this issue before the Cross-Media Report was developed and the commenter did not provide new information in its latest comments. The MPCA had also considered this issue in its review of the mercury mass balance discussion in the EIS process. The MPCA s reviews relied on the agency's judgment to analyze the available data. See response to Comment 401 CCH-543-ED Because no new facts were presented, the MPCA addressed the issue, and there is no reasonable basis for a dispute, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C), are not satisfied. Rather than estimating the factors that would increase methylmercury, the cross media analysis diluted the calculation of sulfate air deposition over entire watersheds and did not account for the full range of potential factors that could affect mercury and methylmercury production, release and transport. (WaterLegacy) 30 of 44

31 180. The Petition alleges that rather than estimating the factors that would increase mercury methylation within the affected area, the cross-media analysis diluted the calculation of sulfate air deposition (which already excluded several sources) over entire watersheds, did not account for the full range of potential factors that could affect mercury and methylmercury production, release and transport, and concluded that sulfate increases from air sources were not sufficient to increase mercury methylation The MPCA disagrees with the allegation. The MPCA considered the effects in the wetland at the location with the highest concentrations of deposition (the WOI) and found no measurable effects or water quality standard exceedances. The mercury mass balance was conducted during the EIS and MPCA found that it properly addressed these concerns. The mass balance method to evaluate mercury is appropriate given the data available and it relies on fewer untested assumptions than a complex model that incorporates input and removal processes for methylation. The MPCA considered the issues raised in the comments and addressed them in the analysis and agency review As described in numerous findings above (and in the referenced response to comments; e.g., response to Comments 401 CCH-543-DJ through 401 CCH- 543-DP), the MPCA did consider the sources that the commenter claims were ignored. For the cross-media analysis, MPCA considered the only changed input the air deposition. MPCA evaluated the effects at locations with available mercury data and found no measurable effect The MPCA finds that the comment raises an issue of fact, but it does not present new facts or a reasonable basis for dispute. Because there is no reasonable basis for a dispute, no new facts were presented, and the MPCA has addressed the issue, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C), are not satisfied. Water Quality Standards apply in wetlands themselves, not just the outflows from the wetlands or downgradient streams. MPCA should not assume 90% removal when comparing the project wetland copper concentration to water quality standards. (FBWW et al.) 184. The Petition alleges that the cross-media analysis inappropriately applies a wetland removal factor to the estimated project copper concentration in the WOI The MPCA disagrees with the allegation. The MPCA agrees that the copper water quality standard applies to wetlands; it is measured as concentration in the water column of the wetland. Because any deposition would be ongoing, copper would be bound to soil or flushed out of the wetland as it is deposited. At no point would the entire mass of copper be in the water column. As a result, accounting for the removal rate is appropriate because it reflects the concentration in the wetland water column, where the standard applies. See response to Comment 401 CCH of 44

32 186. The MPCA finds that the comment raises an issue of fact, but it does not present new facts or a reasonable basis for dispute. The MPCA adequately addressed the issue, so the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. The cross-media analysis contained no assessment of mercury against the 1.3 ng/l standard in the wetland itself. (FBWW et al.) 187. The Petition alleges the cross-media analysis made no assessment of increased mercury levels in wetlands based on the 1.3 ng/l water quality standard The MPCA does not disagree that there was no specific comparison of wetland mercury concentrations against the water quality standard. However, the MPCA did consider wetland mercury concentrations in its review. The mercury concentration in the WOI is driven by the ambient deposition, the vast majority of which originates outside Minnesota. The MPCA considered the impact from project-related deposition and determined that any contribution from the project will be negligible and would cause no measurable change from the existing concentrations. See response to Comments 401 CCH-657 and 401 RTC-543-DS The MPCA finds that the comment does not raise a material issue of fact. Because no new facts were presented, there is no reasonable basis for a dispute, and the MPCA addressed the issue, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. Baseline monitoring of the wetlands is required for valid analysis. The evaluation points are not the points most likely to be impacted. (FBWW et al.) 190. The Petition alleges that the analysis should not have been limited to one "Wetland of Interest and that the MPCA should have identified the wetlands and/or sections of streams where impacts could occur based on all or any combination of contributing factors background concentration, concentration and load levels from all PolyMet sources, flow, water chemistry, etc. The petition argues that limiting the analysis to the wetland that will receive the highest deposition is an over-simplification that may result in a failure to recognize other areas where problems are likely to occur The MPCA disagrees with the allegation. The MPCA has considered the relative deposition and relative effects on adjacent wetlands by considering background concentrations, which are expected to be similar to the WOI. The MPCA's review focused on the site with the highest rate of deposition. This site is a wetland with a watershed immediately adjacent to the mine site. The MPCA has no basis to believe a different site would be more susceptible to degradation by a smaller mass of deposition, and the comment provided no information to support such a position. See response to Comments 401 CCH-658 and 401 CCH-543-DP through 401 CCH-543- DR. 32 of 44

33 192. The MPCA finds that the comment raises an issue of fact, but it does not present new facts or a reasonable basis for dispute. Because no new facts were presented, there is no reasonable basis for a dispute, and the MPCA adequately addressed the issue, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C). On-site baseline monitoring in wetlands is necessary to conduct a valid analysis. Without wetlandspecific data, wetland hardness values cannot be estimated, which affects application of hardnessdependent water quality standards for metals. (FBWW et al.) 193. The Petition alleges that the limited wetland specific conductance values are not sufficient for accurately estimating the hardness value of the wetland. This information is necessary to properly apply the hardness-dependent water quality standards for metals in the WOI (and in other wetlands not represented by the limited conductance data) The MPCA disagrees with the assertion that the limited baseline data precludes a meaningful analysis. The MPCA acknowledges that available data is incomplete, but the agency does not have to wait until it acquires perfect information before it makes a decision. The MPCA used the best data available and determined that the data were adequate to make a reasonable decision. Because the data are incomplete, the MPCA relied on a series of protective assumptions in reaching its conclusion. See response to Comment 401 CCH Individual wetlands considered in the analysis were not unique or sufficiently different such that the available data would not be reasonably representative. Having monitoring data specific to each wetland near the Mine Site and along the railroad corridor was not necessary for the overall analysis due to the protective assumptions that the MPCA used. Monitoring of key wetlands in addition to the WOI is required, however, by the MPCA s 401 Certification The MPCA has considered the available data, including data from the same wetland complex as the WOI, and determined that the data are adequate to make a reasonable decision. The MPCA estimated a reasonable average hardness value for the WOI by applying an MPCA-derived ratio between conductivity and hardness to the average conductivity value from multiple wetland wells. This ratio was derived by MPCA from an analysis of water quality data from the St. Louis River watershed, publicly available through the state s water-monitoring database. See response to Comment 401 CCH The MPCA finds that the comment raises an issue of fact, but does not provide a reasonable basis for dispute. Because no new facts were presented, there is no reasonable basis for a dispute, and the MPCA adequately addressed the issue, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. Proposed monitoring insufficient to ensure that water quality exceedances will be discovered Mercury, sulfate and methylmercury should be monitored during operations, not just for two years prior to operation. (FBWW et al.) 33 of 44

34 198. The Petition alleges the recommendation in the cross-media analysis to monitor wetlands for mercury, sulfate and methylmercury for two years prior to mining, but not during actual operations is not sufficient; the monitoring should be extended through operations The MPCA disagrees with the allegation. The MPCA considered the monitoring needs and concluded that those required by the 401 Certification will be sufficient to detect a potential for impact so that follow-up monitoring, as needed, can be implemented. The comment did not explain why the monitoring proposed in the 401 Certification would not adequately address the concerns The MPCA finds that the comment raises an issue of fact, but does not provide a reasonable basis for dispute. Because there is no reasonable basis for a dispute, no new facts were presented, and the MPCA adequately addressed the issue, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. Proposed wetland monitoring for metals is insufficient; it should include pre-operational monitoring and be extended to additional wetlands of varying type and hydrology. (FBWW et al.) 201. The Petition alleges the recommendation in the cross-media analysis to monitor the WOI for the metals copper, cobalt and arsenic during operations is insufficient; two years of initial monitoring prior to start-up should be done and monitoring for nickel should be included The Petition further alleges this pre-operational monitoring of wetlands for metals should cover a representative number of wetlands that includes all wetland types and wetlands with varying hydrology to determine which wetlands might be most likely to experience water quality exceedances The MPCA disagrees with the allegation that the proposed monitoring is inadequate. The MPCA determined that the pre-operation wetland monitoring coupled with stream and WOI monitoring during operations (required by the 401 Certification) is sufficient to detect a potential for impact so that follow-up monitoring and/or adaptive management, as needed, can be implemented in a timely fashion. The WOI has the highest potential to be impacted, and will be monitored throughout the operation of the facility The MPCA disagrees with the assertion that monitoring for nickel is needed. The MPCA reviewed the available information and considered whether to include nickel, but determined that the likelihood of a water quality exceedance was much lower for nickel than for copper or cobalt based on (1) existing wetland water quality, (2) the remaining increment to the applicable standards, and (3) the release rates for potential metals of concern (including from silicate minerals) evaluated in the EIS. Although the nickel content in olivine may represent approximately a third of the total nickel present in the mined rock (estimated from bulk mineralogy and geochemistry data collected during the EIS), the actual release of nickel from this olivine is insignificant relative to the release from sulfide minerals because that the release rate from olivine is approximately 100 times lower. See response to Comment 401 CCH of 44

35 205. The MPCA disagrees with the allegation that insufficient numbers and types of wetlands are proposed for monitoring. Contrary to the comment, the monitoring proposed in the 401 Certification includes 19 sites surrounding the mine site and at three points along the transportation corridor where wetlands approach or cross the transportation route. The comment does not demonstrate why the wetlands that are required to be monitored would fail to provide an adequate assessment of effects in any direction around the site The MPCA finds that the comments raise issues of fact, but do not provide a reasonable basis for dispute. Because there is no reasonable basis for a dispute, no new facts were raised, and the MPCA adequately addressed the issue, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. The proposed monitoring of only the streams along the rail corridor is not sufficient to identify impacts on wetlands. (FBWW et al.) 207. The Petition alleges the proposed monitoring of only the streams crossing the rail corridor, and not including wetlands along the corridor, will not be sufficient to identify impacts on those wetlands The Petition further alleges that the use of locations upstream of the rail corridor to use as background against which downstream concentrations are measured is not appropriate since the upstream locations could be affected by ore spillage along the tracks The MPCA disagrees with the allegation that the proposed monitoring is not sufficient. The draft 401 Certification includes monitoring requirements at 19 sites surrounding the mine site and at three points along the transportation corridor where wetlands approach or cross the transportation route. The comment does not demonstrate why the wetlands that are required to be monitored would fail to provide an adequate assessment of effects in any direction around the site. Should monitoring at these locations indicate a potential problem, additional, more focused monitoring will be required as part of adaptive management The MPCA disagrees that the use of the upstream monitoring locations is not appropriate. For the purpose of identifying any contribution of pollutants to the streams from rail spillage, monitoring designed to compare upstream values (not affected by spillage) to downstream values (potentially impacted by spillage) is appropriate. The upstream locations will be selected so that they are not potentially affected by spillage along the railroad tracks The MPCA finds that the comments raise issues of fact, but do not provide a reasonable basis for dispute. Because there is no reasonable basis for a dispute, no new facts were presented, and the MPCA adequately addressed the issue, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. 35 of 44

36 Rationale not provided for the MPCA's definition of "measurable" as a means for assessing the significance of an impact The MPCA s definition of measurability, that takes the position that if an increase in a pollutant is within the margin of laboratory error then it is not significant, is not adequately protective. (FBWW et al.) 212. The Petition alleges that the cross-media analysis, by linking the significance of an increase in a pollutant to whether it is within the margin of laboratory error, is not sufficiently protective and will not identify water quality exceedances that the weight-of-evidence would otherwise indicate The MPCA disagrees with the allegation. The MPCA used the best available data and its best judgment to predict whether there would be an exceedance of water quality standards as a result of the project. The predictions showed that wetland water quality would remain in compliance. Unlike a surface water discharge from a pipe, deposition from air is not measurable at the source of release to the environment and is not subject to effluent limitations. As a result, the only available approach to confirm the predictions is to measure the potentially affected receptor and determine whether degradation has occurred. The MPCA evaluated the potential degradation from the project using an approach consistent with its antidegradation rules, which defines "degradation" to mean "a measurable change." Minn. R "Measurable change," in turn, is defined in the same rule to mean "the practical ability to detect a variation in water quality, taking into account limitations in analytical technique and sampling variability." The MPCA used its technical expertise to identify the method to determine a method to identify measurable change that accounted for analytical technique and sampling variability. See response to Comment 401 CCH The MPCA finds that the comment raises a legal and policy issue for which a contested case hearing would not aid the commissioner. Because the comment raises a legal and policy issue, no new facts were presented, the MPCA adequately addressed the issue, and there is no reasonable basis for a dispute, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. Any increase in mercury in the Lake Superior Basin, even if not measurable, is a violation of water quality standards and should not be allowed. (FBWW et al.) 215. The Petition alleges that the approach taken in the cross-media analysis allows for an increase in mercury in the water column and methylmercury levels in fish tissue that is not allowed; it does not matter if the amount of an increase can be accurately measured in the field The MPCA disagrees with the allegation. The mercury emissions considered in the cross-media analysis are not point source discharges subject to effluent limitations. The theoretical "allowable" increases listed in the comment are larger than the MPCA concluded might occur even under the protective assumptions used in the cross-media analysis. In addition, mercury emissions to air from stacks are regulated by (and limited in) the air permit. The MPCA has 36 of 44

37 determined that the emissions from this facility will not jeopardize the goals or targets in the Statewide Mercury TMDL. See response to Comment 401 CCH The MPCA finds that the comment raises a legal issue, not a factual issue that could be the subject of a contested case hearing. Because the comment raises a legal rather than factual issue, and the MPCA adequately addressed the issue, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criterion in Minn. R , subp. 1(A). Minerals with significant metal content not included in the cross-media analysis. The cross-media analysis does not provide a clear explanation how all sulfide minerals present in the ore other than chalcopyrite and pyrrhotite are treated in the analysis. (FBWW et al.) 218. The Petition alleges that it is unclear whether the simplifying assumptions used in the analysis misrepresented metal content. Specifically, the analysis treated sulfide minerals other than chalcopyrite and pyrrhotite the same way as chalcopyrite and pyrrhotite, but it is unclear whether that treatment applied only to their assigned dissolution rate or to their metal content. If the metal content of these other minerals was ignored, then the results of the analysis could change The MPCA clarified the modeling approach used in the analysis in its response. The cross-media analysis considered the original mineralogy and metal content of the different source materials (i.e., waste rock, ore, etc.) and the MPCA relied on that in its review of the analysis. The grouping of the metal-bearing sulfides present as either pyrrhotite or chalcopyrite was for the purpose of assigning a dissolution rate for those sulfides for which reaction data was not available. See response to Comment 401 CCH The MPCA finds that the comment raises an issue of fact, but does not provide a reasonable basis for dispute. Because there is no reasonable basis for a dispute, and the MPCA addressed the issue, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. The cross-media analysis should also include contributions of metals from the silicate minerals, such as nickel from olivine. (FBWW et al.) 221. The Petition alleges that the cross-media analysis should have included contributions of metals from the dissolution of silicate minerals in addition to the contributions from sulfide minerals; the silicate mineral olivine contains levels of nickel that should not be excluded. If non-sulfide minerals containing cobalt and nickel were omitted from the exercise, metals levels in emissions could be underestimated In fact, the MPCA did consider metal contributions from silicate minerals. The MPCA considered the results of waste rock characterization conducted during the EIS when determining whether additional metals from silicate minerals should be evaluated in the cross media analysis. The 37 of 44

38 MPCA found that the amount of nickel released from olivine (a silicate mineral) is approximately 100 times less than the release from sulfide minerals, making it insignificant. As discussed above, MPCA determined that nickel was not a primary concern. Given the smaller percentage of other trace metals such as copper and cobalt within the silicate minerals of the ore and the slower reaction rate of silicate minerals relative to sulfide minerals, the release rate of the other metals is expected to be less than that for nickel from olivine. See response to Comments 401 CCH-660, 401 CCH-663 and 401 CCH The MPCA finds that the comment raises an issue of fact, but does not provide a reasonable basis for dispute. Because there is no reasonable basis for a dispute, no new facts were presented, and the MPCA adequately addressed the issue, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. Poor hydrologic data and the use of average concentrations masks the potential for seasonal water quality standard exceedances. (FBWW et al.) 224. The Petition alleges that the lack of adequate hydrologic data results in uncertainty in modeled estimates and a potential underestimate of export of constituents to downstream waters. The Petition further alleges that the use of averaging and mean values in the context of constituent concentrations and hydrological conditions mask seasonal water quality standard violations The MPCA disagrees with the allegations. The MPCA determined that a large amount of additional data over multiple years would be needed to accurately assess seasonal variability. Because that was not available, the cross-media analysis used the best available information, and made reasonable assumptions based on that information, to characterize wetland hydrology. The use of averages is appropriate for an evaluation of long-term compliance with water quality standards intended to protect against chronic effects. Although the water quality standards have a durational component, there is no specific method in the standard to evaluate compliance. The MPCA determined that the available data were adequate to evaluate prospective compliance with the standards and reached its conclusions on that basis. See response to Comment 401 CCH Because there were no new facts presented in the comment, the MPCA adequately addressed the issue, and there is no reasonable basis for a dispute, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. The cross-media analysis ignores drought cycles and seasonal fluctuations in wetland water levels that would increase metal export. (FBWW et al.) 227. The Petition alleges that operation of the mine (mine pit dewatering), drought cycles and seasonal fluctuations in wetland water levels were not considered in the cross-media analysis and could result in an underestimation of the potential for water quality exceedances. 38 of 44

39 228. The MPCA disagrees with the assertion that the issue of potential wetland water level changes was ignored or that the analysis is flawed without it. The MPCA reviewed the EIS evaluation of the potential change in wetland water levels that could result from mine pit dewatering and MPCA agreed that the evidence does not support significant drops. The comment does not provide a reasonable basis to overturn that conclusion. See response to Comment 401 CCH The issue of seasonal fluctuations in wetland water levels in the WOI was specifically considered in the cross-media analysis through the development of a water balance model for the WOI based on water level data from the WOI. This water balance reasonably (though not exactly) approximated measured water levels and indicates that the watershed yield of the WOI (~41% yield) is similar to that of the Partridge River watershed as a whole (~42%) as determined in the EIS process. This level of analysis is sufficient to estimate the overall potential effect on water quality in the area of highest dust deposition. In addition, water level fluctuations are not expected to change because the watershed area will not substantially change. The cross-media analysis was designed to focus on the potential for longer-term or cumulative effects from air deposition. The expert report submitted with the Petition suggests that the cross-media analysis does not adequately address potential variability in water quality that may be associated with short-term or infrequent fluctuations in water level. However, no data exists on short-term changes in water level in the WOI. To address this issue, in the 401 Certification MPCA has included water quality monitoring of the WOI for the metals of concern. See response to Comment 401 CCH The MPCA finds that the comment raises an issue of fact, but does not provide a reasonable basis for dispute. Because there is no reasonable basis for a dispute, there were no new facts presented in the comment, and the MPCA adequately addressed the issue, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. The cross-media analysis ignored the role of organic carbon in mobilizing metals from wetlands. (FBWW et al.) 231. The Petition alleges the failure of the cross-media analysis to consider the role organic carbon plays in metals sequestration may have resulted in the under-prediction of water quality exceedances The MPCA disagrees with the allegation that organic carbon was not considered or that the analysis under-predicted metal concentrations. Adding organic carbon could potentially increase the release of mercury into the water column in a system that is low in organic carbon. Organic carbon concentration is naturally high in wetlands. The mineral dust deposited on the wetlands is not expected to contribute organic matter or change the concentration of organic carbon already present in the wetlands. Therefore, there was not a need to consider organic carbon in the cross-media analysis. Most of the mercury in the wetlands is most likely bound to organic compounds containing reduced sulfur rather than as mercuric sulfide. The MPCA expects most of the sulfide from the dust deposition would be bound or incorporated into organic matter as well. If elevated mercury concentrations are measured at the river monitoring 39 of 44

40 sites required in the draft 401 Certification, the MPCA can require additional monitoring at wetland monitoring sites that were monitored for mercury and methylmercury immediately prior to the mine operation. See response to Comment 401 CCH-667 for further discussion The MPCA finds that the comment raises an issue of fact, but does not provide a reasonable basis for dispute. Because there is no reasonable basis for a dispute, no new facts were presented, and the MPCA addressed the issue, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. Mercury increases to the Partridge and Embarrass Rivers will not be limited to what falls on open water. (FBWW et al.) 234. The Petition alleges that the cross-media analysis, by using an assumption from the mercury analysis in the EIS that mercury loads from air deposition were calculated only for in-stream lakes, but not for the Embarrass and Partridge Rivers, underestimated mercury loadings The Petition further alleges that although the analysis considered fugitive dust, an incorrect assumption was made that only mercury that falls on open water ends up in surface water The MPCA disagrees with the allegations. This issued was considered in the EIS, which concluded that mercury emissions from the project would not have an impact. As described in Response to Comments 401 CCH-543-DP and 401 CCH-543-DS, the project emits a negligible amount of mercury. Statewide mercury deposition is approximately 12.5 µg/m 2 /yr. The anticipated deposition to the Partridge River watershed from the project is up to µg/m 2 /yr. Thus, the predicted deposition would add up to 1% to the background mercury deposition. The Embarrass River watershed is expected to receive even less added mercury deposition. The facility is expected to contribute less than 1% of background mercury air concentration in nearly all locations in the Partridge and Embarrass River watersheds. The MPCA expects the same proportion of existing deposition and project-related deposition would reach surface waters. See response to Comment 401 CCH The evaluation of cumulative effects in the cross-media analysis did incorporate mercury additions to rivers by considering air deposition, point source discharges, and other project actions that will affect downstream water quality. The evaluation included watershed changes, operation of the FTB seepage capture system and withdrawal of Colby Lake water. Contrary to the comment, the analysis did account for deposition from unpaved roads. Based on the MPCA's experience in past modeling, unpaved roads are the source of the majority of the vehicle-related fugitive/mobile emissions. In this case, based on information provided in PolyMet's air quality permit application, the MPCA found that the fugitive emissions from unpaved roads are a very small percentage (<2.5%) of the overall small total mercury emissions from the project (the majority of which come from the autoclave). See response to Comments 401 CCH-543-DT and 401 CCH Because no new facts were presented, the MPCA adequately addressed the issue, and there is no reasonable basis for a dispute, the MPCA finds that a contested case hearing would not aid 40 of 44

41 the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. Cumulative impacts from air deposition and leachate from mine features into wetlands will violate water quality standards. (FBWW et al.) 239. The Petition alleges that no cumulative impact assessment has been done to predict the combined effects of that leachate from mine features and impacts from air deposition in wetlands across the site, despite acknowledgment in the Environmental Impact Statement that water quality impacts on wetlands from both sources are likely The MPCA disagrees with the allegation. As discussed above in these Findings, the MPCA has considered this issue. The NPDES/SDS permit requires no discharge to surface waters from the sources suggested in the petition. The comment did not provide any basis to show that the permit would be violated or that the MPCA's assumptions in the permit were invalid. Because the assumed discharge is prohibited, and there was no justification for assuming such a discharge, there is no basis for dispute. See response in response to Comments 401 CCH-543-CN and 401 CCH-543-DV Because no new facts were presented, there is no reasonable basis for a dispute, and the MPCA adequately addressed the issue, the MPCA finds that a contested case hearing would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. The cross-media analysis should have evaluated multiple metal toxicity. (FBWW et al.) 242. The Petition alleges the cross-media analysis failed to evaluate the additive effects of multiple metals on fish toxicity The MPCA disagrees with the allegation that the analysis needed to account for potential for toxicity from multiple metals. The analysis focused on an assessment of potential future water quality conditions as measured against Class 2B chronic aquatic life-based water quality standards. Projected metal concentrations in the WOI, the water body most likely to be affected, would continue to meet water quality standards to protect aquatic life. The small potential incremental changes in metal concentrations did not lead to a concern about multiple metal toxicity or a concern about compliance with the narrative water quality standard that protects against toxicity. Conditions are predicted to be nearly the same as under existing conditions. To address the concern about the potential toxicity of the WWTS discharge on fish toxicity, the MPCA has revised the draft NPDES/SDS permit to include an effluent limit for chronic toxicity (WET testing). See response to Comment 401 CCH The MPCA finds that the comment raises an issue of fact, but does not provide a reasonable basis for dispute. Because there is no reasonable basis for a dispute, no new facts were presented, and the MPCA addressed the issue, the MPCA finds that a contested case hearing 41 of 44

42 would not aid the commissioner in making a final decision and the criteria in Minn. R , subp. 1(A) and (C) are not satisfied. FINAL DETERMINATION ON ISSUANCE OF 401 CERTIFICATION 245. The MPCA s decision on the application to issue the NorthMet Project 401 Certification is governed by the MPCA s permit rule, Minn. R , subp. 1, which states: Except as provided in subpart 2, the agency shall issue, reissue, revoke and reissue, or modify a permit if the agency determines that the proposed permittee or permittees will, with respect to the facility or activity to be permitted, comply or will undertake a schedule of compliance to achieve compliance with all applicable state and federal pollution control statutes and rules administered by the agency, and conditions of the permit and that all applicable requirements of Minnesota Statutes, chapter 116D, and the rules adopted under Minnesota Statutes, chapter 116D, have been fulfilled Minn. R , subp. 2, states in relevant part: The following findings by the agency constitute justification for the agency to refuse to issue a new or modified permit, to refuse permit reissuance, or to revoke a permit without reissuance: A. that with respect to the facility or activity to be permitted, the proposed permittee or permittees will not comply with all applicable state and federal pollution control statutes and rules administered by the agency, or conditions of the permit; B. that there exists at the facility to be permitted unresolved noncompliance with applicable state and federal pollution control statutes and rules administered by the agency, or conditions of the permit and that the permittee will not undertake a schedule of compliance to resolve the noncompliance; C. that the permittee has failed to disclose fully all facts relevant to the facility or activity to be permitted, or that the permittee has submitted false or misleading information to the agency or to the commissioner; D. that the permitted facility or activity endangers human health or the environment and that the danger cannot be removed by a modification of the conditions of the permit; E. that all applicable requirements of Minn. Stat. ch. 116D and the rules adopted under Minn. Stat. ch. 116D has not been fulfilled; F. that with respect to the facility or activity to be permitted, the proposed permittee has not complied with any requirement under parts to or chapter 7046 to pay fees; G. that with respect to the facility or activity to be permitted, the proposed permittee has failed to pay a penalty owed under Minn. Stat of 44

43 247. The Permittee has submitted a complete request for 401 Certification. The request and supporting materials have been reviewed and preliminarily approved by the MPCA staff. The MPCA determined that the application demonstrates that all environmental protection standards will be satisfied The MPCA has reasonable assurance, based on the information submitted, that proper operation of the Facility in compliance with the requirements of the 401 Certification (and expected/associated 404 permit) and completion of all required monitoring in accordance with the conditions of the 401 Certification issued by this order will result in compliance with all applicable state and federal pollution control statutes and rules, and the conditions of the permit, and will not pose a danger to human health or the environment The MPCA finds that the proposed issuance of the NorthMet Project 401 Certification JKA as publicly noticed on January 31, 2018, and since revised meets the requirements of Minn. R , subp. 1, and none of the justifications to refuse certification issuance described in Minn. R , subp. 2, exist. CONCLUSIONS OF LAW 250. The MPCA has jurisdiction over the decision whether to issue the 401 Certification for the Poly Met Mining, Inc. NorthMet Project The MPCA has jurisdiction over the decision whether to grant or deny the petitions for a contested case hearing on the Poly Met Mining, Inc. NorthMet Project request for 401 Certification The MPCA finds that the allegations in the petitions do not satisfy the criteria in Minn. R , subp. 1, because they fail to provide a reasonable basis underlying a disputed material issue of fact such that holding a contested case hearing would allow the introduction of information that would aid the MPCA Commissioner in resolving the disputed facts to make the final decision whether to issue the 401 Certification. There is no new information that would be brought to the trier of fact, in this case the MPCA Commissioner. Therefore, holding a hearing would not aid in making a final decision whether to issue the 401 Certification Due, adequate, and timely public notice of the proposed 401 Certification was given in accordance with Minn. R The MPCA Commissioner has decided not to hold a public informational meeting on the 401 certification pursuant to Minn. R , subp The requirements set forth in Minn. R for issuance of the 401 Certification are satisfied and the 401 Certification should be issued. 43 of 44

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