...the Commissioner should find that PolyMet’s proposed bentonite amendment is not a workable practical reclamation technique and does not satisfy the requirements of Minnesota’s Reactive Waste Rule. As a result, the Commissioner should DENY a permit for the NorthMet Project.

...the record will be closed on June 7, 2024 at 4:30 p.m.

...PolyMet has since disclosed to the Band that it is investigating potential new designs for the flotation tailings basin (“FTB”)...If PolyMet cannot confirm it will construct the proposed bentonite amendment to meet the specifications described in the permit to mine application, DNR should deny the application and require PolyMet to submit a new application whenever it develops a new design for the FTB... PolyMet cannot reasonably object to this, because it has itself acknowledged that a change in plan will affect continuing proceedings.

As to the request that PolyMet and DNR be ordered to produce communications regarding changes to the TMF, WaterLegacy and the Conservation Organizations have cited no authority authorizing the Commissioner to order the production of such documents at this stage in the contested case proceeding...the request by WaterLegacy and the Conservation Organizations regarding the additional production of communications between PolyMet and DNR is denied.

The Band’s request rests on the premise that NewRange “has abandoned its current design for the” tailings basin...That premise is incorrect...the Band points to a February 14 outreach email from NewRange’s Tribal Relations Advisor. That email does not say that the design of the tailings basin will change; it says that NewRange is “potentially looking at changing” the design and that “there is a good chance [NewRange] will propose some changes...the NewRange management team is looking at “all aspects of the project..The bottom line is that NewRange has not “abandoned” the bentonite amendment that is the subject of the contested case hearing... NewRange thus asks that the Commissioner-designee resume the exceptions process and proceed to a final decision in this contested case...

DNR’s hearing team requests that the Commissioner-designee stay this proceeding for nine months or, if PolyMet proceeds with a new design for the tailings basin, until PolyMet files an application for an amended permit to mine setting forth a different design for the tailings basin, whichever occurs earlier...

DNR’s litigation team’s letter proposes a stay of up to nine months but also suggests that the proceeding would be “moot” if PolyMet changes its plans for the use of bentonite...the current schedule does not give the Band an opportunity to respond. The Band therefore respectfully requests that you allow the Band to file a response to PolyMet’s and DNR’s new arguments by April 9 when the other petitioners’ responses are due.

PolyMet’s Letter confirms this case is moot. For that reason, DNR lacks jurisdiction, and you must exercise your delegated authority to deny the permit to mine application. Because the case is moot, the DNR litigation team’s proposal for a nine-month stay is nonsensical.

PolyMet’s Letter confirms that the tailings basin design—which includes the design of the flotation tailings basin (“FTB”)— now depends on the outcome of an entirely new review and planning process, the results of which are so speculative that PolyMet cannot make any statements supporting the accuracy or certainty of the design in the application pending before DNR.

PolyMet’s admission that it has no idea whether it will follow the permit to mine application design means that the application now lacks information required under Minn. Stat. § 93.481 subd. 1 and Minn. R. 6132.1100 subpt. 6(C) and 6132.2200 subpt. 2(C)(1). FDL Ltr. Br. at 3.

Because the case is now moot, DNR should reject the DNR litigation team’s request for a nine-month stay. Mootness is a “jurisdictional question,” Dean, 868 N.W.2d at 4 (citing Schmidt, 443 N.W.2d at 826). DNR cannot stay a proceeding over which it lacks jurisdiction. The DNR litigation team’s proposal that the stay be lifted if PolyMet makes statements in letters to the parties does not cure this problem.

Because there is no longer a complete application upon which a permit could be granted, this Designee has the delegated power—and responsibility—to deny the application...PolyMet argues that denial of the application is outside the scope of this Designee’s authority. PolyMet is incorrect...

The Band requested that the DNR “vacate the schedule for submitting objections and arguments” and require PolyMet “to confirm whether it will construct the proposed bentonite amendment” to meet the specifications described in the permit to mine application. Band Letter at 3. The Band further proposed that “[i]f PolyMet cannot confirm it will construct the proposed amendment to meet the specifications described in the permit to mine application, DNR should deny the application and require PolyMet to submit a new application whenever it develops a new design for the FTB (or the TMF).” Id. at 3-4

Rather than confirming that New Range will construct the bentonite amendment proposed in PolyMet’s permit to mine application, counsel stated that whether NewRange proposes changes to the tailings basin design “will depend on the outcome of a thorough technical review that is still in its infancy,” that it is “impossible to know until the review is over” what changes will be recommended, and that the review is not expected to be completed “for many months and potentially more than a year.”

New Range counsel also argued that evidence in its own email and its own letter was outside the scope of the “record” under Minn. Stat. §§ 14.61 and 14.62. Thus, “Nothing in the contested case record shows that NewRange has abandoned its plans for the bentonite amendment.” New Range Letter at 2-3. Counsel further asserted that the Commissioner- Designee’s authority was limited by the DNR advocate’s contested case hearing order and the scope of the ALJ’s report. Id. at 3.

WaterLegacy requests that the Commissioner-Designee deny PolyMet’s permit to mine application on the following grounds: 1) whether or not NewRange will construct the bentonite amendment proposed in that application is uncertain and any decisions on the merits of the bentonite amendment would be purely advisory; 2) the Commissioner- Designee has authority to ensure that no further proceedings bypass the court’s ruling that DNR’s contested case hearing determine whether the bentonite amendment as proposed in the permit application will satisfy Minn. R. 6132.2200, subp.2(B)(2); and 3) PolyMet’s permit to mine application cannot be assigned to NewRange, and NewRange must submit a new application if it intends to proceed with the NorthMet mine project.

This Proceeding Should be Dismissed and PolyMet’s Application Denied Since NewRange Has Not Confirmed It Will Construct the Bentonite Amendment.

PolyMet’s Application Should Be Denied Since DNR Lacks Authority to Assign the Application to NewRange or Issue a Permit on PolyMet’s Application.

On April 28, 2021, the court reversed and remanded the DNR’s issuance of the NorthMet permit to mine due to a lack of substantial evidence to deny a contested case hearing regarding the bentonite amendment and an error in failing to provide a definite permit term.

However, neither Minnesota statutes nor Minnesota rules provide DNR with express or implied authority to approve the assignment of a permit to mine application.

The DNR also can no longer issue a NorthMet permit to mine based on PolyMet’s 2017 application. Minnesota Rules require that “[w]hen two or more persons are or will be engaged in a mining operation, all persons shall join in the application.”

The NorthMet permit to mine application did not join PolyMet US, Inc. or Glencore, which is now the sole owner and parent company of PolyMet Mining Corp,5 and did not join NewRange, Teck American–– PolyMet’s 50-50 joint venture partner in NewRange––or any owner of Teck American

For the foregoing reasons, WaterLegacy respectfully requests that the Commissioner- Designee dismiss these proceedings and deny PolyMet’s permit to mine application.

DNR’s request to stay the proceedings is denied and the Petitioners’ requests to dismiss these proceedings and deny PolyMet’s permit to mine application are also denied.

The Commissioner’s Designee does not have the authority to consider additional evidence at this stage in the proceeding

There is no statutory mechanism for a party to introduce new “evidence” once the hearing record has closed, the ALJ has issued its final report, and the exceptions process has begun.

PolyMet has specifically denied the Band’s characterization of this email, stating that PolyMet has not abandoned its design for the tailings basin included in its permit application (Version 3.1) under review in this contested case proceeding.

No party has provided sufficient justification to stay the current proceedings or deny PolyMet’s application. Accordingly, and for the reasons set forth above, the following rulings are issued forthwith: the Band’s request to deny PolyMet’s permit to mine application and dismiss these proceedings is denied; the DNR hearing team’s request to stay these proceedings is denied; WaterLegacy’s request to deny PolyMet’s permit to mine application is denied; and the Conservation Organizations’ request to deny PolyMet’s permit to mine application is denied. Any other request for relief not specifically addressed herein is also denied

...the record will be closed on August 23, at 4:30 p.m.

Reading this definition together with the definition of “reactive mine waste” estab- lishes that mine waste is “no longer reactive” under subpart 2(B)(1) when it will no longer “release substances” that have “an unacceptable level of impact on the natural resources” around the waste. Minn. R. 6132.0100, subps. 3, 28.

4. The NorthMet Project prevents substantially all water from moving through or over the tailings

Neither this logic nor the ALJ’s analogies fit with the Rule’s key phrase—“substantially all”—which creates a test that is proportional, not absolute.

In this preposterous document the DNR makes the same arguments that Venable & Greene Espel make in NewRange's arguments and exceptions, including that the Northmet FTB meets both possibilities to legality in the state's reactive mine waste law - that the waste will no longer be reactive AND that a substantial amount of water will not contact it.

the Hearing Team respectfully requests an extension of its deadline to file its reply brief, from August 2 to August 30, 2024.

As set forth in Minn. Stat. § 14.61, subd. 2, the record will be closed on October 1 [2024], at 4:30 p.m.

PolyMet’s “Technical Review” Has Made It Impossible to Grant the Permit to Mine Application

The permit is moot, and this proceeding should be dismissed. PolyMet admitted in a letter filed with Director Wilson on March 26, 2024, that “the [PolyMet] management team is looking at ‘all aspects of the project’” as part of “a thorough technical review that is still in its infancy.” 13 PolyMet Mar. 26 Ltr. at 1-2. PolyMet clarified that whether it continues with the current tailings basin design depends on the results of that “thorough technical review,” that the scope of changes to the tailings basin design are unknown, and that the scope of changes

PolyMet’s letter, which is indisputably part of the record, confirms that the tailings basin design—including the proposed bentonite amendment—depends on a new, internal review and planning process, not DNR’s permitting process

As a result of PolyMet’s admissions, the application should be denied for yet another reason. The application is now legally insufficient because it lacks information about the materials, construction, and operations of the FTB that must be included in a proposed mining andreclamation plan in a permit to mine application. As described supra at 11-12, a permit to mine application must include a proposed mining and reclamation plan describing how any reactive mine waste storage facilities will be constructed and operated.

Tailings in the FTB Will Be Reactive. Tailings stored in the FTB will be reactive mine waste. DNR’s litigation team’s interpretation of the definition of “reactive mine waste” is simply wrong, and a veiled attempt to circumvent the requirements of Minn. R. 6132.2200 subpt. 2(B)(1)'

Respondents’ Alternative Interpretations of Reactivity are Wrong. No party contests that the tailings are reactive. However, Respondents adopt interpretations of “reactive mine waste” which stray from the text

The Proposed Bentonite Amendment Does Not Satisfy the Reactive Mine Waste Rule. The proposed bentonite amendment is not “practical and workable” because will not achieve what it must do: Satisfy the reactive mine waste rule. Compare DNR Br. at 9-11 and PolyMet Br. 21-23. The ALJ correctly so concluded, and so his Recommendations 2, 3, and 5 should be adopted.

Huge Amounts of Water Would Move Through or Over Tailings. The ALJ correctly found that the proposed bentonite amendment would fail to meet Subpart 2(B)(2). After application of the proposed bentonite amendment, 298 million gallons of water per year will move through tailings in the FTB.

The Bentonite Amendment Would Not Prevent “Substantially All Water” From Moving Through Or Over the Mine Waste, And It Would Not Preclude All But “Residual Waters” From Seeping “From the Mine Waste

The ALJ found that the bentonite amendment would allow 298 million gallons of water to move “through and over” the mine waste every year.51 In fact, it would be more accurate to say that this is the amount of water that would drain “from the mine waste.” More would move “through and over” the waste from precipitation and runoff over exposed tailings52 and water circulating within the basin. Either way, the record shows that the bentonite would not be sufficient to ensure compliance with Subpart 2(B)(2).53

The Hearing Team argues that the meaning of “substantially all” should be guided by tax cases.54 But “substantially all” has a special meaning in tax law, which was developed through rulemaking. Cont’l Can Co., Inc. v. Chicago Truck Drivers, Helpers & Warehouse Workers Union (Indep.) Pension Fund, 916 F.2d 1154, 1158 (7th Cir. 1990). None of the cases cited by Respondents consider the plain meaning of “substantially all.”

Because undisputed facts in the record establish that the bentonite would not prevent “substantially all” water from moving through or over the mine waste, this Designee should adopt ALJ’s finding and conclusion that the bentonite amendment would not ensure compliance with Subpart 2(B)(2).58 This conclusion could be bolstered by observing that 298 million gallons of water cannot be considered “residual.”

This Designee should adopt the ALJ’s findings that the bentonite amendment would not be a practical and workable technique to achieve compliance with the reactive mine waste rule. The record as a whole further establishes that the bentonite amendment would not meet PolyMet’s hydraulic conductivity and saturation goals, and that it would degrade and fail early in the life of the FTB. PolyMet’s permit application should be denied.

POLYMET’S PERMIT TO MINE APPLICATION MUST BE DENIED ON THIS RECORD AND AS A MATTER OF LAW

DNR Should Adopt the ALJ’s Recommendation to Deny PolyMet’s Permit Due to Failure to Satisfy the Reactive Mine Waste Rule.

The DNR Lacks Authority to Approve PolyMet’s Permit to Mine Application Because it is Moot and Incomplete as a Matter of Law.

In addition to deficiencies presented by the bentonite amendment, the DNR lacks jurisdiction to approve PolyMet’s permit to mine application and may not grant the NorthMet permit. First, as PolyMet admitted in a letter filed with Director Wilson, the new management team for the NorthMet project is “potentially looking at changing” the tailings basin design and “there is a good chance [NewRange] will propose some changes.” PolyMet Ltr. at 1 (Mar. 26, 2024). PolyMet has admitted its “thorough technical review” is “still in its infancy” and may “result in project changes that implicate the issues in the contested case.” Id. at 2. Although PolyMet requested that the DNR issue a decision on the ALJ’s factual findings, id. at 2, that decision would be an advisory opinion. PolyMet has rendered this case moot through its own voluntary action, and PolyMet’s interest in a specific reclamation proposalfor the NorthMet tailings basin at the start of this litigation did not “continue throughout its existence.”

The outcome of the NewRange “technical review” also cannot be predicted. PolyMet’s permit to mine application now describes a potential scenario for mine tailings “with a good chance” of project change. That is not a “plan for the reclamation” describing how reactive mine waste storage facilities will be constructed and operated as required by Minn. Stat. § 93.481, subd.1(1); Minn. R. 6132.2200, subp. 2(C)(1); and 6132.2500, subp. 2(B)(2). PolyMet’s permit to mine application has become contingent and uncertain, so a permit based on that application should not be granted.

The record demonstrates that, even apart from the NewRange “technical review,” PolyMet’s permit to mine application is incomplete. A permit application requires a reclamation plan, and a permit may only be granted on an application the commissioner has “deemed complete.” Minn. Stat. § 93.481, subd. 1(1), subd. 2. A “mining and reclamation plan” must describe “the engineering design, methods, sequence, and schedules of reclamation.” Minn. R. 6132.1100, subp. 6(C). And a reactive waste tailings basin design must describe “all materials, construction, and operating performance specifications and limitations that must be maintained to ensure protection of natural resources.” Minn. R. 6132.2200, subp. 2(C)(1); Minn. R. 6132.2200, subp. 2(B)(2). PolyMet’s does not.

The DNR may assign a permit to mine under certain conditions. Minn. Stat. § 93.481, subd. 5; Minn. R. 6132.4700. But the DNR lacks authority under any statute or rule to approve the assignment of a permit to mine application and cannot enlarge its own powers.

August 14, 2024 – NewRange Copper Nickel today announced that over the next year it is embarking on four key studies to assess whether new mining technology and sustainability developments can further enhance environmental safeguards and mining performance for our NorthMet project.

NewRange is studying a variety of tailings storage options that will minimize impact by reusing the former LTV iron ore tailings facility and clean up impacts from previous iron mining operations, leaving the region in better condition than it is today. Options include keeping the current design detailed in permits, potentially refining the current design to use a centerline dam design, or possibly relocating tailings storage to nearby unused mining pits.

This Matter Should be Stayed Given Recent Press Statements Indicating That PolyMet Will Likely Amend the Permit Application. ...

the Hearing Team notes its continued belief that this matter should be stayed. PolyMet has recently issued a press release stating that “it is embarking on four key studies to assess whether new mining technology . . . can further enhance environmental safeguards and mining performance for our NorthMet project.”1 During this review, PolyMet will study “a variety of tailing storage options”, which, if one option is selected, would trigger an amendment to the permit to mine application and likely another environmental review. Mounting evidence therefore suggests that PolyMet is unlikely to construct the project that it submitted to DNR in its present form. While PolyMet has not stated that it will amend the permit to mine application after it concludes its studies, the Hearing Team remains concerned that PolyMet may be asking the final agency decision-maker to issue an advisory opinion on the reactive mine waste rule for a project design that may never materialize.

...the Hearing Team asks that this matter be stayed until PolyMet makes a final and definitive determination regarding whether it will propose changes to this project.

The tailings will be stored “in an environment” where they are “no longer reactive.”

PolyMet will “prevent substantially all water from moving through or over” the tailings.

PolyMet asks the Commissioner’s Designee to issue a final decision in this contested case, under Minnesota Statutes 14.61 through 14.63, that: • Rejects or modifies the ALJ’s interpretation of Minnesota Statutes section 93.481, subd. 2 and Minnesota Rules 6132.2200, subp. 2(B)(1) and (2); • Affirms the ALJ’s findings on the five fact issues in DNR’s hearing order; and • Grants the other relief described in PolyMet’s principal brief.

On August 30, 2024, I received the Minnesota Department of Natural Resources’ Reply Brief Regarding ALJ Report. In that brief, the Minnesota Department of Natural Resources’ hearing team (“DNR hearing team”) asserted that PolyMet Mining, Inc. (“PolyMet”), through an August 14, 2024 press release (“August 14th press release”), has indicated it does not intend to construct the tailings basin as set forth in its current permit to mine application. Based upon this press release, DNR requested that this matter be stayed until PolyMet makes a final determination as to whether it will propose changes to the permit to mine application. In doing so, DNR asks me to take judicial notice of the press release, pursuant to Minn. Stat. § 14.60, subp. 4. Pursuant to that provision, all parties shall be notified and afforded an opportunity to contest the facts

In light of my May 9th Decision, and DNR’s request that I take judicial notice of PolyMet’s August 14th press release, each party will be given the opportunity to respond to DNR’s request.

I will issue a decision on the DNR’s requests shortly after the September 30th deadline. I will thereafter provide a new schedule for the remaining written exceptions, if appropriate

I. Judicial notice of NewRange’s news release is inappropriate.

You declined to consider a February email discussing NewRange’s planned technical review because “[t]here is no statutory mechanism for a party to introduce new ‘evidence’ once the hearing record has closed

DNR thinks that this system for establishing the record has a loophole. It says that under section 14.60, subpart 4, “the final agency decision-maker may take judicial notice of certain facts.” DNR Reply Br. at 2–3. But that is not what subpart 4 says. Subpart 4 says that agencies “may take notice of judicially cognizable facts” if the parties are told about those facts “in writing either before or during [the] hearing,” in a “preliminary report,” or “by oral statement on the record.”

4. Those three methods of giving notice are not available after the hearing.

II. The information in the news release is not materially different from the information in the February 14 email.

III. The Commissioner’s Designee lacks authority to issue a stay unless NewRange withdraws or amends its permit

DNR’s request for a stay faces another insurmountable obstacle, which it confronts only in a footnote. As your May 9 letter explains, “once an ALJ issues a report with recommendations in a contested case,” the agency decisionmaker has just three choices: “(1) accept the ALJ’s report as the agency’s final decision; (2) modify the ALJ’s report; or (3) reject the ALJ’s report.” May 9 Letter at 5 (citing In re Surveillance & Integrity Review Section, 996 N.W.2d 178, 186–87 (Minn. 2023)). An “indefinite suspension” like the one proposed by DNR is not one of those choices. Id. at 6 n.5.

In sum, your May 9 Letter got things right. Post-hearing evidence like NewRange’s news release is not admissible. Even if it were, the information in the news release is not materially different from the information in NewRange’s February email to the bands. And since that information did not withdraw or amend NewRange’s permit application, you should proceed with a decision accepting, modifying, or rejecting the ALJ’s report

PolyMet has abandoned its plans for the flotation tailings basin and proposed bentonite amendment described in the permit to mine application. Construction, operation, and reclamation of the Project, including the proposed bentonite amendment, now depend on an uncompleted“technical review,” not the plan described in the application. The evidence showing mootness is either in the record or is judicially noticeable. Accordingly, this proceeding and the permit application are moot, and this contested case should be dismissed.

PolyMet’s September 16 Letter makes judicial notice of the Press Release a red herring. In that letter, PolyMet describes the nature of its technical review, including the indeterminacy of its current plans. That firmly establishes in the record of this case that PolyMet has abandoned its application plan and that what it does next depends on its technical review, which is nowhere near complete. See Minn. R. 1400.7400 subpt. 1 (“The record in a contested case shall contain . . . all memoranda or data submitted by any party in connection with the case.”). Therefore, regardless whether judicial notice is available for the Press Release, DNR may consider PolyMet’s change in plans.

II. DNR Should Impose Conditions That Require Transparency from PolyMet. This proceeding should be dismissed, not stayed. But assuming, only arguendo, that DNR determines it has the authority and should issue a stay, then the stay should be conditioned to ensure that PolyMet’s review is timely and PolyMet shares all relevant information

First, PolyMet must provide a timeline for its technical review and submit monthly status reports on its internal review, describing with specificity the state of its technical review and whether it plans to withdraw its application. Then, once PolyMet’s technical review is completed: Within fifteen (15) days, PolyMet shall provide to the parties, and file with Director Wilson in the record of this proceeding, a detailed written explanation of how its plan has changed, any changes it proposes for the permit to mine application, and supporting documentation, including copies of the technical reviews; and within forty-five (45) days of those documents being provided, Director Wilson shall set a schedule for letter briefs on whether PolyMet’s changes have mooted or otherwise impacted the pending contested case, whether it would be appropriate for the petitioners to complete briefing their exceptions and arguments, or whether further briefing is warranted. If PolyMet cannot meet these requirements, then DNR should direct it to withdraw its application and resubmit.

I. Judicial notice of the NewRange press release for the purpose of determining jurisdiction is appropriate

The “contested case record” includes both the “hearing record” and any exceptions and argument to the report of the administrative law judge. Minn. Stat. § 14.61, subd. 2. The DNR Hearing Team’s request in its reply argument that the final agency decision-maker take judicial notice of the Press Release is properly raised

Unlike the February 14, 2024 email to the Fond du Lac Band of Lake Superior Chippewa (the “Band”), a private communication for which the Band provided foundational evidence, the New Range Press Release is a matter of public and widespread distribution.

It is appropriate under applicable law to take judicial notice of the Press Release for the purpose of determining whether the controversy before the decision-maker is moot or otherwise not justiciable.

Uncertainty regarding the NewRange plan for NorthMet tailings storage renders a decision on the reclamation plan in the PolyMet permit to mine application moot and any decision on a potential NewRange application for tailings storage premature.

III. Dismissal of these proceedings is more appropriate than the granting of a stay

NewRange is neither a party to nor has committed to “the bentonite amendment as proposed in the permit application,” which is the subject of this contested case proceeding. In re NorthMet Project Permit to Mine Application Dated December 2017, 959 N.W.2d 731, 754 (Minn. 2021). The DNR decision-maker lacks jurisdiction to make a final decision on the “completed application,” and this proceeding does not include the entities required to be on that application. Minn. Stat. § 93.483, subd. 1, subd. 3 (a)(2)-(3); Minn. R. 6132.0100, subp. 25; 6132.0300, subp. 2; 6132.1100, subp. 4.

At this juncture, denial or dismissal of PolyMet’s proposed permit to mine application is the appropriate, orderly, and just course of action. When NewRange has completed its studies, it may submit a new permit to mine application for whatever NorthMet technology it selects. Should the DNR decide to grant a stay to prevent closure of this record, it should expire no later than January 1, 2025, after which time the PolyMet permit to mine application should be denied or these proceedings dismissed due to a lack of jurisdiction.

In short, this Designee may take judicial notice of undisputed facts related to the August 14th press release for the limited purpose of determining whether DNR retains jurisdiction. Specifically, this Designee should take notice of the fact that PolyMet has publicly announced it is “embarking on” specific studies and naming changes to essential elements of its permit-to-mine application. These new facts reinforce the lack of a complete application to adjudicate.

COs maintain that a stay is unnecessary. Because PolyMet’s statements demonstrate that it is attempting to proceed without a complete application, this proceeding should be dismissed, and Version 3.1 of the application should be denied.

2. The August 14th press release presents new information that is material to whether there is a complete application to adjudicate.

First, the press release is different in nature from PolyMet’s February 14th email, because it is a public-facing announcement that PolyMet has already “embarked on” four specific studies. Significantly, PolyMet now announces: “Proposed changes . . . will include multiple opportunities for public comment and feedback.” (Emphasis added.) This is a concrete promise to the public.

This commitment demonstrates that PolyMet is attempting to proceed outside of the prescribed process for obtaining a permit to mine. PolyMet claims that it can amend its permit application later. However, there is no procedure set forth in statute or rule for amending a permit application after it has been deemed complete.

To the contrary, the permit-to-mine statute and rules set forth specific steps, including: (1) submitting a permit application with all required elements, (2) agency receipt and review of objections, (3) a contested case if necessary, and (4) a permit decision. Minn. Stat. §§ 93.481, .483; Minn. R. 6132.4000. Adjudicating Version 3.1 of the application, then allowing PolyMet to change essential elements of the application, would violate these procedures.

Changing the flotation tailings basin design and rate of construction alter the fundamental components of a permit-to-mine application, including those that inform reclamtion. The new information released by PolyMet reinforces that there is no “complete application” for this Designee to adjudicate.

Counsel for Conservation Organizations including Minnesota Center for Environmental Advocacy, Friends of the Boundary Waters Wilderness, Duluth for Clean Water, Center for Biological Diversity, Friends of the Cloquet Valley State Forest, Save Lake Superior Association, and Save Our Sky Blue Waters

The DNR Hearing Team agrees with Petitioners that you may take judicial notice of PolyMet’s August 14, 2024 press release (“Press Release”) for purposes of acknowledging that PolyMet is seriously considering substantial changes to the NorthMet Project.And aside from the Press Release, PolyMet’s September 16, 2024 letter to you further establishes that PolyMet is seriously considering fundamental changes to the Project. While this proceeding is not currently moot because PolyMet has not modified or withdrawn its permit application, there is a substantial risk of DNR issuing an advisory opinion on a purely legal issue given the substantial likelihood that PolyMet will implement material changes to the tailings basin design following its technical review. A stay is warranted in order to avoid the issuance of a purely advisory opinion.

IV. This Proceeding Should Be Stayed Pending a Decision from PolyMet Regarding its Technical Review

The Hearing Team requests that this proceeding be stayed for a period of one year. The Hearing Team requests that this proceeding be stayed for a period of one year, which aligns with the Press Release’s statement that the technical review will take place “over the next year.” During the pendency of the stay, the Hearing Team requests that PolyMet submit status reports each quarter informing you and the parties of material updates to its technical review and expected impacts to the proposed bentonite amendment. If PolyMet makes a decision as to what, if any, changes it is making earlier than a year, it may be appropriate to lift the stay early. Once the stay is lifted, the parties should be given an opportunity to brief the issue of mootness. If this proceeding is not rendered moot, briefing on the parties’ exceptions to the ALJ Report should be completed expeditiously., which aligns with the Press Release’s statement that the technical review will take place “over the next year.” During the pendency of the stay, the Hearing Team requests that PolyMet submit status reports each quarter informing you and the parties of material updates to its technical review and expected impacts to the proposed bentonite amendment. If PolyMet makes a decision as to what, if any, changes it is making earlier than a year, it may be appropriate to lift the stay early. Once the stay is lifted, the parties should be given an opportunity to brief the issue of mootness. If this proceeding is not rendered moot, briefing on the parties’ exceptions to the ALJ Report should be completed expeditiously.

After careful consideration of the arguments raised by each of the parties and for the reasons set forth herein, DNR’s request to stay the proceedings for a defined period of time is GRANTED and the Petitioners’ requests to dismiss these proceedings and deny PolyMet’s permit to mine application are DENIED

A. The Commissioner’s Designee may take official notice at this stage of the proceeding.

First, PolyMet’s permit to mine application was deemed complete and filed on January 29, 2018. In re NorthMet Project Permit to Mine Application, 959 N.W.2d 731, 742 (Minn. 2021). Parties cite no authority for position that a pending application is rendered “incomplete” by the possibility that the permit application (or the permit itself) may be amended in the future. As such, the determination of completeness by DNR controls unless and until PolyMet formally withdraws or seeks to amend its permit application.

. The mere possibility that PolyMet may revise its permit application in the future does not render it impossible for me to grant relief by issuing a final decision.

Finally, any assertions as to the propriety of PolyMet’s conversion to NewRange or the parties to the application are outside the scope of the present dispute.

IV. Conclusion.

For the reasons set forth above, the current proceedings are stayed until August 14, 2025, unless such stay is lifted before that time as set forth herein. PolyMet shall comply with the deadlines set forth herein for submission of periodic status updates regarding the internal studies contemplated in its August 14th press release.

In your November 25, 2024 letter staying these proceedings, you instructed our client, NewRange Copper Nickel (formerly Poly Met Mining, Inc.) to submit a status update on February 10, 2025. To comply with that instruction, NewRange states that the project studies discussed in its past filings are underway, but not complete. NewRange will provide another update on May 5, 2025

In your November 25, 2024 letter staying these proceedings, you instructed our client, NewRange Copper Nickel (formerly Poly Met Mining, Inc.) to submit a second status update on May 5, 2025. To comply with that instruction, NewRange states that the project studies discussed in its past filings are still underway, but not yet complete. NewRange will provide another update no later than July 14, 2025

NewRange states it is continuing with the previously announced studies regarding possible refinements to the project and permit to mine. While NewRange has made significant progress, these studies are not yet concluded. NewRange anticipates completing the studies and proposing any resulting project changes later this year. There is a high likelihood that some project changes will be proposed, but it has not been determined whether that will include changes to the tailings basin, or to what extent any changes to the tailings basin would implicate the issues in the contested case. Some of the proposed project changes being studied would likely require supplemental environmental review.

Because the current stay expires August 14, 2025, NewRange will provide a further update before that date.

Because NewRange needs more time to complete its studies, it now proposes that the stay to be extended by 45 days, through September 30, 2025.

NewRange is still working on its previously announced studies regarding possible refinements to the project. It has made, and continues to make, significant progress. But these complex studies are taking longer than expected. As noted in my July letter, NewRange anticipates completing the studies and proposing any resulting project changes later this year. There remains a high likelihood that some project changes will be proposed, which could include changes to the tailings basin. Thus, while NewRange opposed the original stay, it is not seeking to relitigate that issue and believes that the logic of the stay would indicate that it should be extended.

NewRange believes that extending the stay by 45 days is reasonable given the current status of proceedings. It proposes another update at that time—no later than September 30, 2025

NewRange is optimistic that the studies will be finished, and any application amendments submitted, in the coming weeks. At present, NewRange aims to have all studies complete and an amended application submitted by November 28, 2025

PolyMet claimed that its studies would be completed by November 28, 2025 and requested an extension of stay through that date. PolyMet also took the position that it can seek to amend its permit to mine application, purporting to rely on Minn. R. 6132.4200, and stated that if it does file an application amendment it intends to do so by November 28

In response to your September 6, 2024 letter, the Band submitted a letter brief on September 23, 2024, explaining that, as a result of PolyMet’s abandonment of the design described in its application, this case has become moot and should be dismissed. Band Sept. 23, 2024 Ltr. at 2-5. In prior filings, the Band also raised arguments on why this case has become moot, the fact that the permit to mine application is not complete, and the need for the Department of Natural Resources (“DNR”) to dismiss the case. See Band Mar. 11, 2024 Ltr. at 2-4; Band Apr. 9, 2024 Ltr. at 1-4; Band Exceps. & Args. at 12-15. In light of your instruction in your August 21 Letter, the Band reincorporates its positions here by reference rather than restating them.

Moreover, PolyMet’s suggestion that the DNR rules allow it to file “an application amendment,” is wrong. PolyMet Sept. 30, 2025 Ltr. at 2 (citing Minn. R. 6132.4200). Minn. R. 6132.4200 allows amendments to permits to mine, not applications for permits. The rule could not be clearer. Subpart 1 provides that “[a] proceeding for requesting an amendment of a permit to mine,” begins when the “permittee files an application for an amendment” to the commissioner. (emphasis added). Under Subpart 2, the commissioner reviews the application to determine “whether the proposed amendment constitutes a substantial change from the permit to mine.” (emphasis added). PolyMet is not a permittee and does not have a permit to mine. It is only an applicant that has filed a pending application. That makes Minn. Stat. 6132.4200 categorically inapplicable here.

Given the Minnesota Supreme Court’s decision reversing DNR’s decision to grant the permit to mine and ordering DNR to hold a contested case, PolyMet’s application is now at the contested case stage, where the commissioner must make a decision on the application. PolyMet simply cannot file an amended application. If PolyMet purports to do that, then DNR must treat it as a wholly new permit to mine application. And if PolyMet does submit a purported “amended application,” then PolyMet will have abandoned its pending application. At that point, there could be absolutely no doubt that this contested case hearing is moot and should be dismissed. An effort by PolyMet to avoid that result and prolong this proceeding on an abandoned application would cause the very “muddle” that PolyMet claims it wants to avoid.

The Conservation Organizations (the “COs”) send this letter in response to PolyMet Mining, Inc.’s (“PolyMet”) request of a further stay of this proceeding to November 28, 2025. Because PolyMet has indicated in this proceeding, informed the U.S. Army Corps of Engineers, and announced publicly that it intends to make changes to its mining proposal, the COs ask that the Designee lift the stay and dismiss the proceeding as mootOnce PolyMet submits a new application, or attempts to submit an “amended application,” for a Permit to Mine to the Minnesota Department of Natural Resources (“DNR”), the case would unquestionably become moot and must be immediately dismissed. Because PolyMet’s mining proposal clearly has changed, there is no appropriate path forward in this proceeding—the Designee can neither make a decision on an inaccurate and outdated record nor accept new evidence necessary for an analysis of PolyMet’s revised mining proposal. Accordingly, the COs request that the case be dismissed.

B. PolyMet must submit a new permit application, not an “amended application”

The fact that PolyMet has significantly changed its mining plan means that PolyMet’s current, outdated application cannot move forward as it is. PolyMet asserts that the permit to mine rules allow it to amend its application, but the rule it cites authorizes changes to a permit to mine, not to an application for a permit to mine. Minn. R. 6132.4200. PolyMet does not currently hold a permit to mine. In re NorthMet Project Permit to Mine Application, 959 N.W.2d 731, 759-60 (Minn. 2021) (reversing and remanding Permit to Mine to DNR). Even PolyMet itself recognizes that it has a “pending permit application.” Sept. 30 PolyMet Letter, at 1. This rule does not apply.

Accordingly, the COs respectfully request that the stay not be extended, and that this proceeding be dismissed as moot.

PolyMet proposes another extension of the stay of contested case proceedings and denies that its expected “proposed project changes that would lead to an amended application” moots these contested case proceedings. Id. at 1. WaterLegacy disagrees with both PolyMet positions.

IV. The Correct Process for the NorthMet Project is a New Permit to Mine Application

PolyMet counsel asserts, “If PolyMet does make changes, they should happen through an application amendment, as DNR’s rules allow. See Minn. R. 6132.4200.” PolyMet Fifth Update at 2. Further, PolyMet argues, “Dismissing this appeal as moot before an amendment is filed would . . . create a procedural muddle.” Id. Both statements are false.

Minn. R. 6132.4200 does not support an amendment to an application; this rule allows a permittee to request “an amendment of a permit to mine.” Id., subp.1. But the NorthMet permit to mine “remains on remand” and “cannot take effect” prior to a decision by DNR “whether to reissue the permit.” DNR Reply Brief Regarding ALJ Report, Aug. 30, 2024 at 4, 35. No Minnesota statute or rule authorizes a permittee to “amend” a permit to mine that has been reversed and not reissued. And no Minnesota statute or rule authorizes a permittee to amend a permit to mine application. However, PolyMet can file a new permit to mine application in compliance with Minn. Stat. § 93.481 and Minn. R. 6132.1000 – 6132.5300. That is the correct process in this case

We are in receipt of NewRange’s request for a further continuation of the stay in this matter to November 28 to allow NewRange to submit an amended permit application. The Department of Natural Resources’ (DNR) hearing team did not file a response to this request because it does not oppose the extension.

In their responses, other parties have requested that this matter be dismissed as moot. The DNR hearing team does not believe any party would be prejudiced by an extension to November 28 for NewRange to submit an amended permit application. It is a relatively short extension, and all parties will still be free at that time to advance arguments that this matter is moot

After careful consideration, and based upon PolyMet’s status updates and for the reasons set forth in my 2024 Stay Decision, the present circumstances warrant an extension of the stay. As such, PolyMet’s request for extension of the stay is GRANTED.

PolyMet shall provide a status update on or before November 28, 2025, which includes a summary of the results of its internal studies and copies of any materials, including any permit application or amendment materials, that it has submitted to DNR.

Petitioners request that their briefs be due by January 23, 2026

Petitioners ask that you clarify that the requested briefing cannot include substantive analysis of PolyMet’s new proposal or arguments about whether any new proposal PolyMet may submit complies with applicable statutes and regulations governing nonferrous metallic mineral mining, including the reactive mine waste rule, Minn. R. 6132.2200 subpt. 2(B

I am in receipt of a letter dated November 7, 2025, in which Petitioners requested that their deadline for submitting a response brief as set forth in my October 30, 2025, letter to the parties (“October 30th letter”) be extended from January 9, 2026, to January 23, 2026. After careful consideration of the request, I hereby grant the requested extension and also modify the schedule to allow the Minnesota Department of Natural Resources (“DNR”) a commensurate extension. PolyMet’s deadline to provide a status update shall remain the same. As such, the briefing schedule set forth in my October 30th letter is hereby modified as follows:

2. DNR’s hearing team shall submit a written response brief as set forth below on or before January 2, 2026.

3. WaterLegacy, the Band, and Conservation Organizations (including Minnesota Center for Environmental Advocacy, Friends of the Boundary Waters Wilderness, Duluth for Clean Water, Center for Biological Diversity, Friends of the Cloquet Valley State Forest, Save Lake Superior Association, and Save our Sky Blue Waters) shall submit written response briefs as set forth below on or before January 23, 2026

Petitioners further requested that I clarify the scope of the briefing requested in my October 30th Letter.

My October 30th Letter instructs the parties to address three specific questions related to how specific actions taken by PolyMet may impact the instant proceedings in light of the governing law. As such, my October 30th Letter accurately describes the intended scope of the requested briefing from the parties.

I.

The DNR Commissioner Must Deny Any Proposed “Amendment” to the Permit to Mine Application.

A.

The DNR Lacks Authority Under Minn. Stat. §§ 93.481 and 93.483 to Accept an Amendment to a Permit to Mine Application Deemed Complete, Noticed, and Filed.

The Fond du Lac Band of Lake Superior Chippewa (“Band”), WaterLegacy, and the Minnesota Center for Environmental Advocacy (“MCEA”)1 (collectively, “Requestors”) hereby request that the Commissioner of the Department of Natural Resources (“DNR”) deny any attempt by NewRange Copper Nickel, LLC (“NewRange”) to submit a purported “amendment” to the application for a permit to mine for the NorthMet Project filed by Poly Met Mining, Inc. (“Applicant PolyMet”) on or about January 29, 2018.2 This request is made on the following grounds: 1) the Minnesota Statutes do not give the DNR authority to amend a permit to mine application after it has been completed, placed on notice, and filed; 2) the Minnesota Rules do not allow amendment of an application for a permit to mine—rather, they only allow amendment of a permit, which NewRange does not have; and 3) allowing a purported “amendment” to a completed, noticed, and filed permit to mine application after a remand and contested case hearing on the project would be inequitable and inconsistent with the Minnesota Administrative Procedure Act (“MAPA”).

...aims to have all studies complete and an amended application submitted by November 28, 2025

Here's the Nov 28 update - doesn't mention having these studies done, AS PROMISED, and instead makes a 19 page legal argument on why the stay should be extended until they say its over

Petitioners request a suspension of all briefing deadlines in response to PolyMet’s November 28, 2025 submittal. The filing provided by PolyMet counsel failed to include “its studies [that] will result in proposed project changes that would lead to an amended application” as promised in PolyMet’s September 30, 2025 status update and, thus, did not provide briefing on all the questions that the Designee directed the parties to address in their written briefs.

The Designee’s October 30, 2025 letter, which set a briefing schedule, required PolyMet to provide a status update “which includes a summary of the results of its internal studies and copies of any materials, including any permit application or amendment materials, that it has submitted to DNR.” These materials would be the basis for the parties to answer the three legal questions posed by the Designee in briefs of no more than thirty (30) pages.

It would be ineffective and inefficient to brief the three questions raised by the Designee without the materials promised by PolyMet. Moreover, PolyMet’s November 28 submittal suggests that it may not provide such materials until January 28, 2026—the date by which it plans to submit an amended Clean Water Act permit application—which is after the DNR Hearing Team’s and Petitioners’ written responses are due. See PolyMet Nov. 28, 2025 Br. at 9 & n.3. And even if PolyMet submits materials before January 28, 2026, the DNR Hearing Team and Petitioners will have less time to review and respond to these materials than they did under the Designee’s November 14 schedule. Following the current briefing schedule would therefore disadvantage the DNR Hearing Team and Petitioners and potentially require additional rounds of briefing to address all the issues raised by the Designee’s questions.

Petitioners therefore respectfully request that the Designee suspend the deadline for briefing until PolyMet provides the materials it promised in its September 30, 2025 status update and which the Designee directed PolyMet to provide and brief in the October 30, 2025 letter. When PolyMet submits such materials, Petitioners propose that the DNR Hearing Team have twenty-one (21) days after PolyMet’s submission to file a written response brief and that Petitioners then have an additional twenty-one (21) days to file their written response briefs.

On December 5, 2025, Petitioners submitted a response letter similarly requesting that I suspend all briefing deadlines until PolyMet provides the tailings storage plans and briefings.

In recognition that they are the only party to have not yet responded to PolyMet’s submittal, and consistent with my November 14, 2025 letter, I provide DNR until January 2, 2026 to submit its position on the proposed extension of the stay, should it desire to do so. Otherwise, because the current briefing schedule was predicated on studies and submissions which are not yet complete, DNR’s and Petitioner’s deadlines described in the November 14, 2025 letter are hereby suspended. I will issue a decision on the proposed stay extension in early 2026.

On December 5, 2025, Petitioners submitted a response letter similarly requesting that I suspend all briefing deadlines until PolyMet provides the tailings storage plans and briefings. Pursuant to my December 11, 2025 letter to the parties (“December 11, 2025 Letter”), I provided DNR until January 2, 2026 to submit its position on the proposed extension of the stay, should it desire to do so.

DNR did not submit its position on or before January 2, 2026. Based on the parties’ submissions, it appears there is no opposition to PolyMet’s request to extend the stay. Because no party has opposed this request or otherwise indicated that it will be prejudiced by the requested extension, PolyMet’s request for extension of the stay is GRANTED.

The stay shall remain in place until PolyMet completes its internal studies and formally notifies DNR of its tailings storage plans or other circumstance warrants a lifting of the stay

Upon completion of its internal studies and notification to DNR of its tailings storage plans, PolyMet shall, within 14 days of its notification to DNR, provide a final status update that includes a summary of the results of its internal studies and copies of any materials, including any permit application or amendment materials, that it has submitted to DNR.

In your January 14, 2026 letter, you stayed this matter “until PolyMet completes its internal studies and formally notifies DNR of its tailings storage plans or other circumstance warrants a lifting of the stay” You also required PolyMet (now known as NewRange Copper Nickel LLC) to provide status updates every 60 days until the stay is lifted.

As 60 days have passed since your letter, I am writing to tell you that NewRange has not formally notified DNR of its tailings storage plans, and that it is aware of no other circumstance that warrants a lifting of the stay.

In your March 16, 2026, update letter to Designee Grant Wilson, you cited the Designee’s letter of January 14, 2026, and stated, “I am writing to tell you that NewRange has not formally notified DNR of its tailings storage plans.”

WaterLegacy would appreciate a clarification of your update. Has NewRange informally notified the DNR of its tailings storage plans? Have the PolyMet or NewRange “internal studies” referenced in your update been completed? We look forward to your clarification.

The Department of Natural Resources’ permit team has been represented by the law firm of Holland & Hart in this matter. Holland & Hart is electing to withdraw from this representation. As a result, I will be taking over as counsel for the DNR permit team until further notice.

By this letter, I enter my appearance in this matter. Counsel for all parties should update their contacts to reflect the change in representation.

In your January 14, 2026 letter, you stayed this matter “until PolyMet completes its internal studies and formally notifies DNR of its tailings storage plans or other circumstance warrants a lifting of the stay.” You also required PolyMet (now known as NewRange Copper Nickel LLC) to provide status updates every 60 days until the stay is lifted.

I sent an initial update letter on March 16. Sixty more days have passed since then, so I am writing with another update. It remains the case that NewRange has not formally notified DNR of its tailings storage plans, and that it is aware of no other circumstance that warrants a lifting of the stay.